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

ANNA M SALINAS, Employee

LIFE STYLE STAFFING OF MADISON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04003443BO


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 during one week and then on Monday and Tuesday of the next week as a laborer/packer for a temporary employment agency. She was assigned to one of the employer's clients, a textile business. The work was full time on the first shift and the rate of pay was $7.75 per hour. The work was located about 20 miles from the employee's residence.

The employee called in her absence from work due to illness on Wednesday and Thursday, May 12 and 13, 2004, during her second week of employment.

At some point on May 13 the employer's manager called the employee about her absence from work. During the call, the employee stated that she felt better but also stated that she did not like the position and did not want to continue there. She informed the manager that some employees at the client had made some remarks, including racial remarks, that she believed were inappropriate. However, the employee had never taken her concerns regarding the remarks to a supervisor or a manager.

The employee testified that on May 13 she told the employer's manager that "if I had to go back to work there (the employer's textile client), I would." The employee admitted that she did not say whether or not she would be going back to work for the client the next day, or ask if she was supposed to go in to work the next day. She testified that when she stated she would go back to work there if she had to, the employer's manager's response was, "okay." The employee testified that she figured the employer's manager would have told her if she needed to go back to work for this client.

The employer's manager testified that during the May 13 conversation the employee said she was still looking for work and that he told her the employer would be willing to offer her continued work if it found the right assignment for her. The employer's manager testified that the employer did not have an assurance of work for the employee that day. Further, the employer's manager testified that the conversation ended with him telling the employee that he would tell the client she was not returning "and start looking for something else for her."

The employer's manager testified, "I don't recall the employee saying anything about the fact that if she had to go back to work, she would."

May 13 was the last contact the employer's manager had with the employee.

The ALJ determined that the employer's contention that the employee quit was more persuasive than the employee's contention that she was discharged. As reasons for her determination, the ALJ stated that it was the employee who broached the subject of ending her assignment, that if she had made the comment about continuing work there if she had to, she should have followed up by asking whether in fact she was expected or required to return, and that the entire tone of the conversation was to the effect that she did not want to continue her assignment and would not be doing so. The ALJ concluded the employee's quitting was not for any reason constituting an exception to Wis. Stat. § 108.04(7)(a), and further, that the employee was paid benefits in the amount of $646, which she was not entitled to and must be repaid.

Even assuming that it was the employee who broached the subject of ending her assignment, that she failed to follow up by asking if she was expected or required to return and that the entire tone of the conversation was that she did not or "would not" be continuing this assignment, the evidence does not indicate that the employee intended to sever her employment with the employer. First, the employee's concern was just with this particular assignment to the employer's textile client. Second, the employer's manager admitted not only that the employee stated she was still looking for work, he admitted telling the employee that the employer was willing to offer her continued employment if the employer found the right assignment for her. Third, the employer's manager admitted that the conversation ended with him telling the employee he would tell the client she was not returning to work "and [he would] start looking for something else for her." Finally, the evidence indicates that the employer's manager never got back to the employee because the employer's manager testified that May 13 was his last contact with the employee.

While the evidence does not indicate that the employee quit, the evidence also does not indicate that the employer had discharged the employee in week 20 either, but that it had merely acquiesced in the employee's preference not to go back to work for the employer's textile client.

The very nature of the relationship between a temporary employment agency and an employee contemplates that employees will be offered at a variety of assignments. Indeed, the employer's manager testified that the employee said she was still looking for work and that he told the employee that he would start looking for something else for her. However, the employer's manager also indicated that he never got back to the employee because he testified that he had no contact with the employee after May 13.

It would therefore appear that the correct issue is whether or not the employee failed to perform work available under Wis. Stat. § 108.04(1)(a). That statute section provides as follows:

"Eligibility for benefits. (1) GENERAL DISQUALIFICATIONS AND LIMITATIONS. (a) An employee's eligibility for benefits shall be reduced for any week in which the employee is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employee would have earned as wages for that week in such available work as wages earned by the employee and shall apply the method specified in s. 108.05(3)(a) to compute the benefits payable to the employee.."

(Bold emphasis in original; Italics emphasis added.)

Based on the employee's hourly wage rate of $7.75, she could have earned $186 (had she worked on May 12, 13 and 14). This amount, when added to the department's records showing her previously reported wages of $100, totaled $286. The department's records also show, however, that the employee's weekly benefit rate was only $231, which would have made her ineligible for benefits for that week because the total wages she could have earned for that week would have exceeded her weekly benefit rate. The department records show that the employee was paid benefits of $184 for week 20 of 2004.

The commission therefore finds that in week 20 of 2004, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 20 of 2004, the employee was not discharged from her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 20 of 2004, the employee was called on by her current employing unit to report for work actually available, and was unavailable, or unable to perform some of such work within the meaning of Wis. Stat. § 108.04(1)(a). The employee could have earned $186, in addition to wages of $100 previously reported, for total wages of $286 for week 20. Based on the employee's weekly benefit rate of $231, she was entitled to benefits of $59 in that week. The employee received benefits totaling $184 for that week. The commission therefore finds that in week 20 of 2004, the employee was paid benefits in the amount of $125, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

Wisconsin Statute § 108.22 (8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission therefore 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 employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2004, if otherwise
qualified. She is required to repay the sum of $125 to the unemployment reserve fund.

Dated and mailed October 25, 2004
salinan . urr : 125 : 1  AA 110  AA 115

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the administrative law judge before deciding to reverse the appeal tribunal decision in this matter. As discussed in the main body of this decision, even accepting the ALJ's reasoning for finding a quit, the evidence indicates there was no intention on the part of the employee to sever her employment with the employer.

cc: Life Style (Baraboo, Wisconsin)


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uploaded 2004/11/03