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

ANDRE D THOMPSON, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04605461MW


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 at several client assignments for the employer, a staffing business. The employee notified the employer that he could only accept work accessible by public transportation.

The employee's first assignment was as a tool tester, earning $7.50 an hour. The assignment began at the end of 2002 and ended six months later. Upon the conclusion of the tool testing assignment, the employer offered the employee an assignment at a display business in New Berlin, Wisconsin. The employee refused the assignment because it required transportation hardships. In Thompson v. Cornwell Personnel Associates, Ltd., UI Dec. Hearing No. 03604528MW (LIRC January 30, 2004), the commission held that this refusal, in week 14 of 2003, was not a quitting.

The employee next worked for the employer from July 21, 2003 (week 30) through Friday, January 16, 2004 (week 3) at a bindery client, earning $9.00 an hour.

The employee then worked one day, Monday, January 19, 2004 (week 4) packing pens for the employer, at a client industry for the blind. He was paid $7.00 an hour for that one-day assignment.

On Tuesday January 20, 2004 (week 4), the employer offered the employee a bakery packing assignment that the employee refused because the location was unavailable by public transit. With respect to this refused assignment, the commission held that the employee's refusal was not a quitting. Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 04602284MW (LIRC August 4, 2004).

On Thursday, January 29, 2004 (week 5), the employer again offered the employee a position at a display client located in New Berlin, Wisconsin. The position paid $7.00 an hour and was to begin on Friday, January 30, 2004 (week 5). The employee refused the position, citing the fact that he resides in Milwaukee and would have to take at least two bus systems, incurring additional transportation costs because the second bus system would not honor transfers from the first. A companion commission decision for hearing number 04605447MW found that the employee's refusal of this continuing work for the employer was a quitting with good cause attributable to it.

On February 17, 2004 (week 8), the employer contacted the employee offering him an assignment at the display client in New Berlin, Wisconsin. The rate of pay was $7.00 an hour and was to begin the next day, Friday, February 18, 2004 (week 8). The employee declined the offer.

The issue before the commission is the employee's eligibility for unemployment insurance benefits based upon his refusal of work in week 8 of 2004.

The employer petitioned the appeal tribunal decision contending that the wages were not substantially less favorable when compared to similar types of work in the labor market, and the employee did not have good cause for the refusal. While the commission agrees with the employer's assertion that the job title on the received labor market report appears to be for a higher skill level of work than the offered work, the commission declines to remand the matter for a new report because it finds that the employee had good cause for the refusal on different grounds. In particular, the January 29, 2004 assignment offer paid seven percent less than the employee's recent one-day assignment and required additional transportation costs. More importantly, the offered assignment paid 23 percent less than his six month assignment with the employer that ended five weeks earlier. Wis. Stat. § 108.04(8)(d) provides that a worker

shall have good cause under par. (a) or (c), regardless of the reason articulated by the employee for the failure, if the department determines that the failure involved work at a lower grade of skill or significantly lower rate of pay than applied to the employee on one or more recent jobs, and that the employee had not yet had a reasonable opportunity, in view of labor market conditions and the employee's degree of skill, but not to exceed 6 weeks after the employee became unemployed, to seek a new job substantially in line with the employee's prior job skill and rate of pay.

Under these circumstances, the commission finds that the significantly lower rate of pay combined with the added transportation costs in relation to the employee's recent employment constituted good cause for the employee's refusal of the offer of work.

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

DECISION

The appeal tribunal decision is modified to conform to the above findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed February 2, 2005
thompan . urr : 150 : 1   VL 1025  SW 810.15

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission modified the appeal tribunal decision because it has reached a different legal conclusion as to what the evidence reflects, not because of any different assessment of witness credibility or demeanor.



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