BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

JODIE L FETZER, Employee

Involving the account

WEST BEND JOINT SCHOOL DISTRICT NO 1, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 93605520WB


ORDER

On June 24, 1993, the Department of Industry, Labor and Human Relations (department) issued an initial determination finding that the employe worked for the employer in an instructional capacity and that she did not have reasonable assurance that she would perform such services in the next academic year or term. Benefits were allowed. The employer timely appealed and a hearing was held before an administrative law judge. On August 4, 1993, the administrative law judge issued a decision reversing the initial determination, finding the employe ineligible for weeks 24 through 34, 1993 on the ground that she had reasonable assurance that she would perform such services in the next academic year or term for the named employer. The department filed a timely petition for commission review of the appeal tribunal decision.

Pursuant to authority granted in section 108.09 (6) (d), Stats, the Labor and Industry Review Commission remands this case to the department for further hearing before an administrative law judge, acting on behalf of the commission, on the issues described herein.

The employe worked for several school districts during the academic school year, as a substitute teacher. From November 16 through November 18, the employe worked as a substitute teacher for the named employer, West Bend Joint School District No. 1 (West Bend).  The employe was a substitute teacher for different classrooms on November 20, December 2, 7, 8, 9, 11, 1992 and January 22, 25, 27 and February 1 and 2, 1993. Sometime after that, the employe accepted a long-term substitute teaching assignment with the Hartford School District. This assignment lasted from March 22, 1993 through April 21, 1993. The other school districts involved were Richfield and Slinger. The employe had no other long-term assignments during the academic year following the end of her April 21, 1993 assignment but worked at least one day as a short-term substitute teacher after this long-term assignment.

Based upon the employe's sworn statement, form UCB-157, the department in its initial determination found that no reasonable assurance existed since none of the school districts provided assurance of any long-term substitute teaching. The administrative law judge reversed the initial determination and found that the West Bend School District provided reasonable assurance when it sent the employe a letter in week 24 stating that she would be placed on a substitute teaching list for the next school year and that a workshop for substitute teachers was scheduled for August 17, 1993. In reaching her decision, the administrative law judge examined only whether the named employer, West Bend, provided the employe with reasonable assurance as an on-call substitute teacher.

However, in the past, both the department and the commission have looked at composite employment for the preceding academic term or year. In Diane S. Hanson v Bonduel Public School, (LIRC 1/18/85), the commission held that a teacher who taught half-time with Bonduel Public Schools and half-time with another school district during the first academic year, did not receive reasonable assurance of similar employment where only the other school district offered to continue her half-time position. The commission found that since the employe had a 50 percent reduction in her wages and hours, she did not have reasonable assurance of similar employment for the next school year. This holding and rationale was also followed in Thomas G Martinko v. School District/West Allis - West Milwaukee, et al. (LIRC 2/19/88). In Martinko the employe held a 60 percent position with West Allis and a minimal part-time position with MATC. The employe had reasonable assurance of retaining his position at MATC. However, when West Allis failed to offer any work for the next school year the commission found that the employe did not have reasonable assurance of similar employment for the next school year. In both cases the commission compared the employes'  composite employment in the preceding and succeeding school years when determining whether each individual had reasonable assurance.

The commission believes that this analysis is sound and in keeping with both the intent and spirit of the law as set forth in sec. 108.04 (17)(a), Stats . Section 108.04 (17)(a), Stats., provides: .

"An employe of an educational institution or an employe of a government unit or nonprofit organization who provides services to or on behalf of an educational institution and who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such  services for any week of unemployment which occurs between two successive academic years, between two regular terms, whether or not successive or between two regularly scheduled periods of employment which are different from an academic year or regular term, if the employe performs such services in the first such academic year, term or period and if there is a contract or a reasonable assurance that the employe will perform such services in the second such academic year, term or period."

Thus, while it is commonly held that the intent of this statute is to prevent subsidized summer vacations for teachers employed during one academic year and who are reasonably assured of resuming their employment the following year, it is also held that the statute does not totally prohibit teachers from receiving unemployment compensation benefits during a summer period between academic years. Leissring v. DILHR, 115 Wis. 2d 475, 488-489 (1983). In Leissring at page 489, the supreme court held that " [t]o interpret sec. 108.04(17)(a), Stats., as disqualifying the teacher if he or she merely has some assurance of performing any instructional, research or principal administrative services the following year, no matter how minimal the wages, hours and benefits might be in comparison to the teacher's wages, hours and benefits of the preceding year, is not supported by the legislative history, and is contrary to the general purposes of Ch. 108." As noted by the court of appeals in DILHR v. LIRC and Smithson, 155 Wis. 2d 256, 267 (Ct. App. 1990), the supreme court in Leissring drew no distinction between full-time, part-time and substitute teachers, when interpreting sec. 108.04 (17) (a), Stats.

Here, the employe performed substitute teaching assignments for four school districts during the 1992-1993 school year. The same four school districts provided the employe with assurance of placement on a substitute teaching list for the following school year, 1993-1994. None of the school districts provided the employe with any assurance of any long-term substitute (1)  teaching assignment. Since a finding of reasonable assurance requires comparing the employe's composite preceding school year employment with all of the assurance of work for the next year, the next issue is whether the employe was provided with "reasonable assurance of similar employment" within the meaning of sec. 108.04(17)(a), Stats.

In DILHR v. LIRC and Smithson, 155 Wis. 2d 256 (Ct. App. 1990), the employe performed long-term substitute teaching for an entire academic year. All the employer provided to the employe for the next school year was assurance of placement on a substitute teaching list. The court of appeals in Smithson held that that was not "reasonable assurance of similar employment" within the meaning of sec. 100.04 (17)(a), Stats. The court reasoned that the subsequent offer of on-call substitution (placement on a substitute teaching list), was not reasonable assurance of "similar employment." In reasoning so, the court held that a substitute teacher who is guaranteed 40 hours a week in employment at a higher wage is not offered reasonably similar employment when merely placed on a substitute teacher list the following semester. Smithson, at page 268.

However, the court of appeals did not define the length or period of time a substitute teacher must work at a long-term substitute assignment in order to require more than placement on an on-call substitute list in the subsequent academic year for a finding of assurance of similar employment. In Smithson, the court of appeals did not need to make such a distinction since the facts were clear. However, the commission is persuaded that the holding in Smithson does not require that a long-term substitute teaching assignment of any duration mandates that the employe receive an offer of long-term substitute teaching in the subsequent academic year before a finding of reasonable assurance can be made. The commission holds that if a long-term teaching assignment or assignments constitute less than 20 percent of the employe's total employment for the previous or "first" academic year, on-call substitution or placement on a substitute teaching list for the subsequent or "second" academic year constitutes reasonable assurance within the meaning of the law. The commission believes its holding sound in view of the department's administrative rule governing full-time teachers, located at section ILHR 132.04 (2), Wis. Admin. Code. (2)

Although section ILHR 132.04 (2), Wis. Admin. Code provides for such an analysis for full-time educational employment, it explicitly excludes substitute teachers. However, the administrative rule, section ILHR 132.04 (3), governing substitute teachers, was invalidated by the court in Smithson. Further, as noted above, the supreme court in Leissring drew no distinction between full-time, part-time and substitute teachers, when interpreting the law governing reasonable assurance.

In summary, the three following factors will be required when determining whether placement on a substitute teaching list is "reasonable assurance of similar employment" within the meaning of the law. The first step requires determining the type and length of teaching assignments the employe worked in the preceding school year. The second step requires determining what percentage of the employe's total school year employment in that preceding school year was comprised of long-term teaching assignments. The third step requires determining the type and duration of substitute teaching assignments assured in the next school year. If, after this assessment and comparison, all relevant factors lead to a conclusion that the long-term teaching assignment(s) constituted less than 20 percent of the employe's total employment for the preceding academic year, placement on a substitute teaching list would constitute reasonable assurance within the meaning of the law. (3)  On the other hand, if, after this assessment and comparison, all relevant factors lead to a conclusion that the long-term teaching assignment(s) constitute 20 percent or more of the employe's total employment for the preceding year, assurance of long-term assignment(s) and/or placement on a substitute teaching list will not automatically constitute reasonable assurance of similar employment. The commission holds that the language of Leissring requires a comparison of long-term assignments in the preceding year with the length and nature of assignments offered or assured in the next semester to determine whether reasonably similar employment has indeed been assured. The commission intentionally has not adopted a precise formula for determining reasonable assurance under these circumstances, believing that a case by case analysis more truly reflects the intent of Leissring. The commission is unable to conclude whether the employe had reasonable assurance of similar employment in this case. Therefore, the commission orders that additional testimony be taken before an administrative law judge, acting on behalf of the commission, with respect to which wages, hours and benefits for the 1992-1993 academic year were for short-term assignments and which were for long-term assignments and the length, nature and type of assignments that were assured for the following academic year, 1993-1994.

Dated and mailed February 17, 1994
135 - 1050 ET 481

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

 

Pamela I. Anderson, Chairman (dissenting) :

I am unable to agree with the result reached by the majority herein and I dissent. I believe that the employe had reasonable assurance of similar work for the next year with this employer. The "long-term" substitute work that the employe did was for another school district and does not control whether the employe had reasonable assurance with this school district. We have always looked to make certain that the reasonable assurance offers were bona fide offers of work. An employer cannot place unlimited numbers of people on the substitute teachers list and have a bona fide offer of work.

In the early days of this program, teachers had made a policy decision that they would receive more pay if they did not also collect unemployment compensation during times when school was not in session. The school district would pay partial benefits for weeks when the employe is not substituting enough to earn more than the benefit rate. In the past, we have not required all employers to appear at the hearing to decide if the employe had reasonable assurance from one employer. The majority position would require that there be a group hearing or that each school district appear at other hearings involving this employe. I believe that we can tell that the employer offered the employe reasonable assurance of similar work because the employe had no long-term assignments from this employer. The Hartford School District case would have to be looked at individually and might have a different result. For these reasons, I do not believe that a remand is necessary and I would affirm the administrative law judge's decision.

/s/ Pamela I. Anderson Chairman

 

cc:
Glenn Kelley
Bureau of Legal Affairs



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Footnotes:

(1)( Back ) Denoting this particular assignment as "long-term" is based on  the party's testimony and terminology and not any administrative rule or departmental policy.

(2)( Back ) Section ILHR 132.04 (2) provides that employment is reasonably similar if:

"(a) The gross weekly wage is more than 80 percent of the gross weekly wage earned in the academic year or term which preceded the weeks of unemployment;

 (b) The number of hours per week is more than 80 percent of the average number of hours worked per week in the academic year or term which preceded the weeks of unemployment; and

(c) The employment involves substantially the same skill level and knowledge as the employment in the academic year or term which preceded the weeks of unemployment."

(3)( Back ) Placement on a substitute teaching list does not automatically result in a between term suspension. The employer must establish that there will be a reasonably similar opportunity for the employe to perform substitute teaching work in the next academic year, term, or period. This is demonstrated by comparing the number of substitute teachers on the previous substitute list with the number to be listed in the next academic year, term or period, with the ratio between the number of regular teachers and substitutes, and the school's experience using substitute teachers. Additionally, the manner of selecting substitute teachers must be considered. Unemployment Compensation Benefits Manual, Vol 3, Part VII, Chapter 7, Section 8, pg. 19.

 


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