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

GREGORY A THOMAS, Employee

U W MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04605784MW


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 has performed services for seven years as a food service worker for the employer, a university. His services are tied to the school year and until 2003 he also performed services during the summer break. At one time, he was scheduled to work 35 hours per week, however, his work schedule varied from one school year to the next. For the 2003-2004 school year, the employee worked 23 hours per week.

On May 12, 2004, the employer notified the employee that his last day of work for the 2003-2004 school year would be May 23, 2004 (week 22). The employee was not offered work for the summer but was to return to work for the 2004-2005 school year on September 1, 2004 (week 36). Due to budget concerns, the employer did not know what the employee's work hours would be for the 2004- 2005 school year and directed the employee to contact his supervisor two weeks prior to his return to work date in order to receive his work schedule. The employee is seeking unemployment insurance benefits as of week 22.

Wis. Stat. § 108.04(17)(d), provides that a school year employee of an educational institution, providing services for or on behalf of the institution in other than an instructional, research, or principal administrative capacity, is ineligible for unemployment insurance benefits based upon those services for any week of unemployment that occurs during the period between two successive academic years or terms, if the employee performs such services in the first academic year or term and there is reasonable assurance of performing such services in the second such academic year or term.

Thus, the issue to be decided is whether the employee is a school year employee who had reasonable assurance of performing similar work in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(d).

A "school year employee" is an employee of an educational institution who performs services under an employment contract that does not require performance of services on a year round basis. Wis. Stat. § 108.02(22m). Given the fact that the employee's services are not required year round and are tied to the school year, the commission agrees with the administrative law judge that the employee is a "school year employee."

Next, in establishing whether a worker has reasonable assurance, it is an employer's burden to present evidence that the employee's opportunity to work in the upcoming school year would be similar to the opportunity the employee had in the prior academic year or term. Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999). In this case, the employer failed to present any competent evidence that the employee's opportunity for work in the 2004-2005 school year would be similar to the opportunity he had in the 2003-2004 school year. While the employee was to return as a food service worker, the employer's witness did not know whether the employee would work 23 hours per week or less, indicating that to give an estimate would only be "guessing." This uncertainty was exacerbated by the employer's past actions of varying the employee's hours from one school year to the next and in ceasing to employ the employee during the summer months. Under these circumstances, the commission finds that the employer failed to meet its burden of establishing reasonable assurance and the employee is eligible for unemployment insurance benefits, if otherwise qualified.

The commission therefore finds that the employee performed services in other than in an instructional, research or principal administrative capacity, for an educational institution during an academic year or term, but that as of week 22 of 2004 the employee did not have reasonable assurance of performing such services in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(d).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2004, if otherwise qualified.

Dated and mailed September 29, 2004
thomagr . urr : 150 : 1    ET 481

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing the appeal tribunal decision, because the reversal is not based upon a differing view as to the credibility of the witnesses. Instead, the reversal is based upon the commission's conclusion that the employer's evidence was insufficient as a matter of law.



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uploaded 2004/10/01