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

MARVIN L BUTLER, Employee

SIMPLY STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04202819EC


On December 23, 2004, the Department of Workforce Development issued an initial determination which held that the wages, hours, or other conditions of the work the employee failed to accept, were substantially less favorable to the claimant than those prevailing for similar work in the locality. The employer filed a timely request for hearing on the adverse determination, and teleconference hearing was held on January 25, 2005 in Eau Claire, Wisconsin before a department administrative law judge. On February 4, 2005, the administrative law judge issued an appeal tribunal decision reversing 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 issue in this case is whether the employee failed to accept an offer of suitable work from the employer. The commission concludes that, while the employee failed to accept the offer, it was not suitable within the meaning of Wis. Stat. § 108.04(9)(b). The commission therefore reverses the appeal tribunal decision.

The employee worked on two assignments for the employer in 2003 and 2004. The employer is a temporary staffing agency. The employee's last day of work was March 31, 2004 (week 14).

On November 17, 2004 (week 47), the employee was offered work as a packager at a manufacturing plant in Baldwin, Wisconsin. This was second shift work and paid $10.50 per hour, Monday through Friday. The work was to begin on November 19, 2004 (week 47). The employee told the employer that he would check with his fiance and let them know. He did not do so. The jobs were filled by other people. He called back on November 23, 2004 (week 48), but was told that the positions were no longer available.

Wisconsin Stat. § 108.04(9)(b) states that benefits shall not be denied to any otherwise eligible individual for refusing to accept new work if the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. The Department of Workforce Development has quantified this standard with what is known as a "quartile" system. Essentially, if the condition in question prevails in less than 25% of the jobs in the particular job category at issue (along with similar work as defined in the administrative code), the work is substantially less favorable than prevailing work in the locality, under Wis. Stat. § 108.04(9). These so-called labor standards "are minimum standards" and "apply to all denials of benefits for refusal of offers of or referrals to new work regardless of [the claimant's] reasons for refusing the job." Unemployment Compensation Program Letter Note. 130, p. 2 (January 6, 1947). This is because the purpose of the standards is not primarily directed at particular individuals, but rather is "to prevent the unemployment compensation system from exerting downward pressure on existing labor standards" (emphasis added). Id. at 3. In the present case, second shift work constitutes approximately 23 1/2 percent of the full-time labor market for similar jobs. As such, it is "substantially less favorable" under Wis. Stat. § 108.04(9).

The commission therefore finds that, in week 47 of 2004, the employee did not fail to accept an offer of suitable work, within the meaning of Wis. Stat. § § 108.04(8)(a) and 108.04(9)(b).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 47 of 2004, if he is otherwise qualified. As a result of this decision, there no longer is an overpayment (of $885) for the employee to repay.

Dated and mailed May 24, 2005
butlema . urr : 105 : 4  SW 844  SW 855

/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 case. The commission's reversal is not based upon a differing credibility assessment from that of the administrative law judge, but rather is as a matter of law.

 


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