ANDRE D THOMPSON, Employee
CORNWELL PERSONNEL ASSOCIATES LTD, Employer
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:
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.
The issue before the commission is the employee's eligibility for unemployment insurance benefits as of the week 5 of 2004 assignment refusal. Inherent in this determination is whether the employee's refusal of the assignment to begin on January 30, 2004 (week 5) was a refusal of an offer of new work or a rejection of ongoing work with the employer.
The nature of the relationship between an employee and a temporary help agency contemplates that a variety of assignments will be offered. An employee's failure to accept one specific assignment at a particular location does not, in and of itself, reflect an intent to quit, just as a failure to immediately offer an employee another assignment after a refusal of ongoing work, does not translate into a discharge. See Thompson v. Cornwell Personnel Associates Ltd.,, UI Dec. Hearing No. 03604528MW (LIRC January 30, 2004). Instead, where there is "evidence that at the time of layoff there existed assurance, expressed or clearly implied by the circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future, the relationship continues." A. O. Smith Corporation v. DILHR, 88 Wis. 2d 262, 267, 276 N.W.2d 279 (1979).
The commission has found that the employment relationship between these two parties was in a continuing status as of Tuesday, January 20, 2004 (week 4). Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 04602284MW (LIRC August 4, 2004). While the record does not reflect any other assignment offers or discussion of future offers until the Thursday, January 29, 2004 (week 5) offer, based upon the almost six months of continuous work with the employer with the assignment ending in week 3 and the work and offers of other assignments in weeks 4 and 5, the commission finds that the circumstances implied that some type of work would be resumed as of week 5. Thus, the assignment offered on Thursday, January 29, 2004 (week 5) was an offer of continuing employment.
The next issue for the commission is whether the employee's rejection of that assignment severed the employment relationship and, in any case, whether the employee is eligible for unemployment insurance benefits based upon this rejection.
The employer contended that the employee's refusal constituted a quitting. To support its contention the employer offered an employment policy that the employee signed and which indicates that the employer "may . . . assume" that the employee voluntarily terminated his employment by refusing an assignment. Although the commission agrees that the employee's week 5 refusal constituted a quitting, the mere fact that the employment policy states that the refusal will be treated as such does not make it so; a private contract between an employee and a temporary help employer that provides that a refusal of an assignment constitutes a quitting, cannot override the unemployment insurance law.
See Memorandum Decision, Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 04602284MW (LIRC August 4, 2004).
The key element to determining whether an employee voluntarily quit is the employee's intent. The courts have consistently held that an employee can show intent by actions that are inconsistent with the continuation of the employment relationship.
Nottelson v. ILHR Dept., 94 Wis. 2d 106,119 (1980); Tate v. Industrial Commission, 23 Wis. 2d 1, 6 (1963). The commission has not adopted a bright line standard for determining at what point a worker's refusal of assignments establishes intent to sever the employment relationship. The commission believes that each such situation presents unique facts, and analysis on a case by case basis is best. In fact, even between these current parties, the commission has treated earlier assignment refusals differently depending on the specifics of each refusal.
The employee had been offered this same assignment approximately eight months earlier, and his refusal in that case was treated not as a quitting but as due notice of work available (1) because it was an isolated refusal where, afterward, the employee affirmatively kept in contact with the employer to determine if other assignments were available. In the next Thompson (2) case, the commission affirmed the appeal tribunal's logic in finding that the employee's refusal of an assignment that both he and the employer knew was inaccessible to him did not sever the employment relationship. These earlier Thompson decisions demonstrate the commission's resistance to treating isolated assignment refusals as a quitting where there are reasonable obstacles to the employee's acceptance and the employee continues to contact the employer for work. See Peters v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 02605143MW (LIRC December 4, 2002) where assignment was not available by public transportation and Townsend v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 02605548MW (LIRC February 27, 2003) where assignment required steel toed boots that the employee did not have given her prior office work experience and which were not established to be worth investing in. By contrast, in Ware v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 01606760MW (LIRC December 21, 2001), the commission treated an assignment refusal as a quitting where although the assignment was not on a bus route and the employee was concerned about his vehicle's reliability, the employee's vehicle was working and the employee failed to explain his transportation concerns at the time of refusal.
The commission finds that the circumstances of the employee's week 5 assignment refusal are more like the Ware case than the earlier Thompson, Peters and Townsend cases. In particular, while it may have been more difficult to get to than other assignments, the week 5 assignment was available by public transit. Further, this was not a first refusal but a second of the same assignment with no evidence that the employee contacted the employer thereafter to determine whether other assignments were available. These facts when viewed in light of the employment policy lead the commission to find that the employee's assignment refusal was so inconsistent with the continuing employment relationship as to sever it.
The final issue to be decided is whether the employee's quitting was within an exception to allow for the immediate payment of unemployment insurance benefits.
The petitioner implied that the employee's quitting by refusing the assignment was not with good cause as the employee had agreed to accept a variety of work assignments at differing locations and for at least minimum wage. However, in Johnson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 02601143MW (June 27, 2002) the commission declared that
this type of contract is "too vague to constitute knowing acceptance of any particular job assigned in the future." See Joeann Jackson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 97607140MW (February 20, 1998); Diane Koepke v. Cornwell Personnel Associates Ltd. v. LIRC, (LIRC November 20, 1998).
In Stetz v. DILHR, et al., Case No. 136-215, Dane County Circuit Court, February 13, 1973, the court held that "good cause" related to the reaction of the employee, specifically whether the quitting was a reasonable reaction to some act on behalf the employer. In the same vein, pay reductions between 11% and 30% have been found sufficiently substantial to constitute good cause attributable for quitting. Butler v. Advantage Advertiser LLC, UI Dec. Hearing No. 02002243BO (LIRC July 5, 2002).
The January 29, 2004 assignment paid seven percent less than the employee's recent one-day assignment, required additional transportation costs and required transferring of bus systems. More importantly, the offered assignment paid 23 percent less than his six month assignment with the employer that ended two weeks earlier. The commission finds that the lower rate of pay and additional transportation costs in relation to the recent long-term assignment constituted good cause attributable to the employer for the employee's quitting.
The commission therefore finds that in week 5 of 2004, the employee voluntarily terminated his employment with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).
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 1015.01
VL 1059.20 VL 1025
/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 regarding the nature of the employment relationship as of the assignment offered on January 29, 2004 (week 5), not because of any different assessment of witness credibility or demeanor.
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