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

LISA Y SHAVER, Employee

CONDON OIL CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04400573FL


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 as a manager for a convenience store for many years. The store was being sold to new owners on September 19, 2003 (week 38). Her last day of work for her prior employer was September 18, 2003.

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.

The employee did not consider the result of negotiations between her and the new owners to be an "offer" because she did not trust the new owners and nothing was put in writing. The employer expressed an interest in retaining the employee. The parties disagreed about the exact wage that was discussed but agreed it was less than the hourly wage the employee made for her prior employer. The employer stated that she would have to pay at least half of her health insurance premium, or at least $243.82 per month. The employer does have a 401-K program but did not inform the employee of the details of the program, nor did it inform her that it had a matching program. The employer explained that she would be expected to take on some additional duties. However, the employer never informed her of the number of hours she would be expected to work.

It has been consistently held that in order for an offer of work to be considered bona fide, it should be of such definite character that nothing more than a simple acceptance is necessary to form a contract of hire. K & H Construction, Inc., v. Ind. Comm. & Severson, Case No. 124-118 (Dane Co. Cir. Ct., March 8, 1968). A bona fide offer is one that is complete and requires no action on the part of the employee to complete it. Webber v. PA Staffing Ser. Inc., UI Hearing No. 99601291MW (LIRC June 9, 1999) (an offer which did not include the location of the job but which required the employee to contact the employer to learn it not a bona fide offer because not complete); and Jordan v. Personnel Alternatives, Inc., UI Hearing No. 93610008MW (LIRC Sept. 2, 1994) (offer which stated the duties of the position, the wage rate, the starting date, and the hours of work is a complete and bona fide offer).

In this case, the employer did not inform the employee of the minimum number of hours she would work, though it did inform her of a maximum. The minimum number of hours a worker will be able to work directly affects a worker's pay and is a critical factor that the worker needs in order to determine whether to accept the work. Because the employer did not inform the employee of the minimum number of hours that would be available to her it failed to make a bona fide offer of work.

The commission therefore finds that in week 38 of 2003, the employee did not fail to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a).

DECISION

The decision of the administrative law judge is reversed. Accordingly, employee is eligible for benefits beginning in week 38 of 2003, if she is otherwise qualified.

Dated and mailed December 3, 2004
shaveli . urr : 145 : 8   SW 845.03

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding witness credibility. The commission has not reversed the ALJ's decision based on credibility. The commission reversed the ALJ's decision because it reached a different conclusion when it applied the law to the facts found by the ALJ.



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uploaded 2004/12/06