STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MANUEL MEJIAS, Employe

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97607990MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe began working for the employer, a temporary help agency in April of 1997. The employe worked for the employer from April, 1997 through June, 1997 and from August, 1997 through September 30, 1997 on various assignments. The employe's last assignment lasted two months. The employe worked as a general laborer, 40 hours a week earning $7.50 an hour. The employe's last day of work was September 30, 1997 (week 40).

On the employe's last day of work, September 30, 1997 the employe worked only two and a quarter hours. The employe got sick at work and had permission to see a doctor that day. The employe had back pains and was released from work from October 1 through October 6, 1997 by his doctor. The employe presented the excuse to the employer. No assignments were offered during that time.

On October 7, 1997 (week 41) the employe reported back to work and requested his previous assignment. The employer informed the employe that the client no longer desired the employe because his attendance was poor. At that time the employe was offered a bindery job in Ozaukee county paying $6.00 an hour for first shift work. The best evidence available indicates that it was also for 40 hours per week. The employe declined the job offer because it would have involved working with powder. The employe is bothered by allergies and asthma and believed the powder would aggravate his condition. When the employe initially began work for the temporary help agency he indicated he would accept $5.50 an hour and admitted that he would work in "hot dusty factories because if he had not done so he would not have gotten hired".

Based on these facts, the ALJ found that the employment relationship was terminated by the employer's failure to return the employe to his former job and subsequently, by replacing him at the client's request. The employer timely petitioned the commission for review of this decision. The employer contends that it was not the moving party in this employment separation but rather the employe was the moving party when he quit by refusing the job assignment in week 41 of 1997.

Based on the facts found by the ALJ, the commission cannot conclude that the employer terminated the employe when it was unwilling to permit the employe to return to his previous assignment because of poor attendance. It was the employer's prerogative not to place the employe there based on its client's request. On the other hand, the commission is also unwilling to conclude that the employe evinced an intent to quit his employment or constructively quit his employment by refusing the assignment in Ozaukee county in week 41 of 1997.

Whether an employe has in fact quit a temporary help employment relationship depends on the individual circumstances of each case. Most recently, the commission in Joeann Jackson v. Cornwell Personnel Associates, Ltd., (LIRC 2/20/98), found that the employe did not quit her employment by refusing another assignment but instead failed to perform all work available in that week within the meaning of Wis. Stat. § 108.04(1)(a).

Here, the employe refused an assignment at a bindery because of his allergies and asthma. It was the only assignment offered to the employe by the employer in that week. The commission therefore is unwilling to conclude that the employe's actions were inconsistent with the continuation of the employment relationship given the nature of temporary help employment relationships and the employe's lack of intent to quit.

Since the employe failed to perform work available to him in week 41 of 1997, his benefit eligibility must be reduced by the amount of wages he could have earned in that week had he performed the available work offered to him by the employing unit. The best evidence in the record is that the employe could have worked 40 hours in week 41 of 1997 at $6.00 per hour for wages totaling $240.00. Benefits were claimed in week 41 of 1997, and accordingly must be reduced pursuant to Wis. Stat. § 108.05(3).

The commission therefore finds that in week 41 of 1997 the employer did not terminate the employe's employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 41 of 1997 the employe did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 41 of 1997, the employe was with due notice called on by his current employing unit to perform work actually available within that week and was unable to perform, or unable for, some or all of such available work, within the meaning of Wis. Stat. § 108.04(1)(a).

The commission further finds that the employe was paid benefits in the amount of $65.00 for week 41 of 1997 for which he is not eligible and to which he is not entitled within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. There was no employment separation in week 41 of 1997. Accordingly, in week 41 of 1997 benefits will be reduced by including in the computation of benefits payable the amount of $240.00 as wages the employe would have earned had the employe performed all of the available work. This results in a $65.00 overpayment for week 41 of 1997 which the employe is required to repay to the Unemployment Reserve Fund.

Dated and mailed: April 3, 1998
mejiama.urr : 135 : 1 AA 110  VL 1035

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Given the unique nature of temporary help employment relationships, the commission is unwilling to conclude that every refusal of a job assignment constitutes an employment separation, more specifically a quit. The commission has consistently examined the reasons for job refusals in temporary help employment relationships and when deemed appropriate, the commission treats the analysis as work available under Wis. Stat. § 108.04(1)(a). The facts in this case do not require a determination that either the employer terminated the employment relationship or that the employe terminated it by refusing the job assignment. The only assignment offered that week was work in a bindery which the employe believed would aggravate his allergies and asthma. His refusal was reasonable and no further assignments were offered that week. Accordingly, the commission is satisfied that the employe was with due notice called on by his current employing unit to perform work actually available for week 41 of 1997 within the meaning of Wis. Stat. § 108.04(1)(a). The employe's refusal to perform the assignment, while reasonable, still must result in a reduction of benefits pursuant to Wis. Stat. § 108.05(3).


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