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

DAWN M GUMZ, Employee

MANPOWER, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04201249EC


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 its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about three weeks as a data entry clerk at an insurance business for the employer, a staffing agency. Her last day of work was April 2, 2004 (week 14).

The issue to be decided is whether the employee failed to accept an offer of work and, if so, whether good cause existed for failing to accept that offer.

Prior to working for the employer, the employee had worked about seven years as a health information management specialist at a hospital. Her ending rate of pay was $10.72 per hour and her last day of work was January 28, 2004 (week 5). On March 16, 2004 (week 12), she accepted work with the employer. The pay rate was $10.00 per hour and the workplace was about 32 miles from her residence. She was assigned to work at a business that provided customer service for the processing of prescription drug claims. On April 2, 2004 (week 14), the employee was notified that the assignment had ended. No assurances were given as to whether continuing work would be available. Consequently, the employment relationship ended.

On April 12, 2004 (week 16), the employer offered the employee work as a mailroom clerk. The pay rate was $9.00 per hour. The position was at another insurance company which was located about 32 miles from the employee's residence. The employee refused the offer of work due to the rate of pay and the commuting distance.

The statutes provide that a claimant who fails to accept an offer of work will have his or her unemployment benefits suspended unless the failure to accept was for good cause. If the failure was for good cause, the claimant must establish that he or she remains able to work and available for work in the labor market.

Based upon the best available evidence adduced at the hearing, the pay range of work offered to the employee was between $5.15 to $13.20 per hour. Wages less than $6.14 per hour were substantially less favorable than the prevailing rate of pay for similar work in the locality. The employee did not have good cause for refusing the offer of work due to the rate of pay. In the employee's labor market, the customary commuting distance of work that paid at least $9.00 per hour was 20 miles. The work offered by the employer was beyond the customary commuting distance, and the employee had good cause to refuse the offer of work on that basis.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

The employee has had work experience as a health information management specialist, unit clerk, cashier, and data entry clerk. She graduated from high school and received vocational diplomas in health unit coordination and information processing. She was unwilling to accept work that paid less than $9.00 per hour for work within 18 miles of her residence. She was unwilling to work for less than $10.00 per hour for work in the Wausau area which was more than 25 miles from her residence.

The employee's labor market consists of a 25-mile radius from her residence, including parts of Clark, Lincoln, Taylor and Marathon counties. She was available for 54 percent of the suitable work in her labor market with the restriction to $9.00 per hour and a commuting distance of 18 miles from her residence. The employee's $10.00 per hour restriction pertained to work outside of her labor market.

Under the circumstances, the employee's personal circumstances afforded good cause for failing to accept the work.

The commission therefore finds that in week 16 of 2004, the employee failed to accept an offer of suitable work, with good cause, within the meaning of Wis. Stat. § 108.04(8)(a), and that the employee was able to work and available for work within the meaning of Wis. Stat. § 108.04(8)(e).

DECISION

The decision of the administrative law judge is modified to conform with the foregoing findings and, as modified, is affirmed in part and reversed in part. Accordingly, the employee is eligible for unemployment benefits beginning in week 16 of 2004, if she is otherwise qualified.

Dated and mailed September 23, 2004
gumzdaw . urr : 132 : 1     SW 810.15 AA 215

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission has reversed the ALJ's finding that the employee was not able to work and available for work. The employee did not precisely state that she was unwilling to travel between 18 and 25 miles from her residence unless she was paid $10.00, but stated she would travel 18 miles for $9.00 an hour and expected $10.00 for the Wausau area. The Wausau area is outside of the employee's labor market and therefore that wage restriction would not render the employee unavailable for work in her own labor market.

cc: Manpower (Wausau, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2004/09/27