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

RANDALL J NARLOCK, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04603511MW


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 in a series of assignments for a temporary help agency. His last assignment ended on Friday, January 30, 2004 (week 5). On Tuesday February 3, 2004 (week 6), the employee was offered an assignment at a printing company working 5 a.m. to 1 p.m. Monday through Friday earning $8 per hour. The employee refused the job because he had no personal transportation and could not get a bus to Brookfield early enough for the shift. The employee continued to call in to the employer. He was directed to fill out an application for a temporary to permanent assignment on February 4. On February 11, 2004 he began a short term assignment before beginning long term work at the temp to permanent job.

The first issue is whether the terms of the employment contract were changed and therefore the offered assignment on February 3, constituted new work which the employee had good cause to refuse. There is no basis for finding this assignment marked a change in the employment contract. The contract has no restrictions as to location, shift, wage or type of work. The employee never asserted a new condition of employment or that the offer was outside of his contract of hire. Therefore, given the ongoing contacts between the parties and employer's efforts to secure the employee an assignment, the only reasonable conclusion is that the employment relationship continued during the employee's definite lay off. Therefore, the employee's refusal of an assignment constitutes a work available issue rather than either a quit or a job refusal.

The commission held most recently in Polk v. Cornwell Personnel Associates Ltd, UI Dec. Hearing No. 04602403MW (LIRC Jul. 20, 2004), that not every work refusal in the context of a temporary help agency employment constitutes a quitting even if the employer has a policy to treat it as such. "The nature of the relationship between a temporary help agency and an employee contemplates that assignments will be offered at a variety of locations. The employee's failure to accept one specific assignment at one particular location does not in and of itself reflect an intent on the part of the employee to voluntarily terminate his employment." Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 03604528MW (LIRC January 30, 2004).

The commission concludes that the employee did not fail to accept an offer of work. The employee also had no intent to sever the employment relationship when he failed to accept the assignment. The commission remands the issue of whether the employee failed to perform the work available to the department for further investigation. The record does not clearly reflect how much the employee would have earned in the assignment, the number of hours available in the assignment, or how long the assignment was to last, so further investigation is necessary.

The commission therefore finds that in week 6 of 2004, 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 in part and the matter is remanded to the department for an investigation on whether the employee had due notice of work available under Wis. Stat. § 108.04(1)(a) in week 6 of 2004. Accordingly, the employee is eligible for benefits, if he is otherwise qualified

Dated and mailed March 8, 2005
narlora . urr : 178 : 4  SW 853  AA 110  VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission reverses the appeal tribunal decision as a matter of law. The issue in this case is more appropriately analyzed as a work available issue. The department is directed to investigate the issue further.


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uploaded 2005/03/11