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

DANA M STEWART, Employee

ADECCO USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04201604MD


On June 26, 2004, the Department of Workforce Development issued an initial determination which held that the employee had quit her employment but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on July 26, 2004 in Madison, Wisconsin before a department administrative law judge. On July 27, 2004, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three months as a general laborer for the employer, a temporary employment agency, after which time she moved to "permanent" employment with the client to which she had been assigned by the employer, and the issue is the proper characterization of the separation from employment with the employer. The commission concludes that it is properly characterized as a discharge, and so reverses the appeal tribunal decision.

The employee worked for the employer for approximately 90 days; her last day of work for the employer was May 21, 2004 (week 21). At the end of her employment, the employee was eligible to apply for permanent work with the client in question, and did so. The client accepted her application, so she transferred to work directly for the client. There is no evidence in the record to establish that the employer had additional work available the employee could have performed with another client, or that the employee knew she had the right to decline to continue working for the client and instead to continue to work for the employer.

This case is governed by Parish v. Adecco Employment Services, Inc., UI Dec. Hearing No. 99003656BO (LIRC, Feb. 28, 2000). That case concerned exactly this issue, that is, where an employee working for one client of a temporary help employer "transfers" to direct employment with the client pursuant to an agreement between the employer and the client. In the present case, there is an agreement between the employer and the client pursuant to which, after 90 days, workers hired by the employer are eligible to be hired directly by the client. In order for the separation from employment with the employer to be considered a quit and not a discharge, the employer "must establish both that the employer had additional work available that the employe could have performed with another client and that the employe was aware that she could decline to accept employment with the client and continue such work with the employer." Parish v. Adecco Employment Services, Inc., supra. In the present case, the employer established neither criterion. For this reason, the separation is properly characterized as a discharge and not as a quit.

The commission therefore finds that, in week 21 of 2004, the employee was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 21 of 2004, if she is otherwise qualified.

Dated and mailed February 8, 2005
stewada . urr : 105 : 2  VL 1007  VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission concluded as a matter of law that the undisputed facts of the case require the conclusion of discharge and not of quit.

 

cc: Adecco USA, Ladysmith, WI


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