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

TAMMY J COOLEY, Employee

COOP EDUCATIONAL SERVICE AGENCY NO 3, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005408DV


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Paragraph 13 of the appeal tribunal's findings of fact and conclusions of law is deleted.


DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits as of week 25 of 2004 if otherwise qualified. This case is remanded to the department to redetermine whether the employee's failure to start or reactivate a benefit claim prior to August 31, 2004 was due to exceptional circumstances within the meaning of the statutes, and if not, whether she was paid benefits to which she was not entitled, and must repay, and to investigate whether she performed work and/or earned wages during week 35 of 2004 or other claim weeks, which were not reported to the department, unless otherwise resolved.

Dated and mailed March 30, 2005
cooleta . umd : 105 : 8   ET 481

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision, as modified, for the following reasons. There is no dispute but that the work the employee performed for the educational service agency was similar, if not substantially identical, to that she was to perform for the school district in the subsequent year. That alone is insufficient to establish reasonable assurance as contemplated both by the statutes and by the controlling case law on the issue, Leissring v. DILHR, 115 Wis. 2d 475, 340 N.W.2d 533 (1983). As the administrative law judge reasoned, the statutes distinguish via separate subsections work for school districts and work for educational service agencies. In Leissring, the court held that one would have "reasonable assurance" only "if the terms and conditions of the employment for the following year" were reasonably similar to those in the preceding year. Leissring, 115 Wis. 2d at 489. When these two factors are considered together, it is evident that reasonable assurance requires not only that the work be similar but that the employers compared be similar as well. The legislature made the determination that that is not the case when the employers in question are a school district and an educational service agency.

For these reasons, and for those stated in the appeal tribunal decision as modified, the commission has affirmed the decision.



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