WILLIAM T GANLEY, Employee

COMMAND LABOR, Employer

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:

The employee worked three assignments over a five day period as a day laborer for a supplier of labor services. His last day of work was February 14, 2005 (week 8).

The employer requires employees to appear at its office on a daily basis to request work. The assignments are single day assignments at different locations. The last day the employee worked, he signed in at 5:45 a.m. The employee appeared for work but was not assigned. He did not return after that because he could not afford the gas for a 50 mile commute to the employer's location.

The issue to be decided is the nature of the employee's separation from employment and whether that separation disqualifies him from receiving benefits.

As a general rule, a worker who is laid off on an indefinite basis no longer has an employment relationship with the employer. A. O. Smith Corporation v. DILHR, 88 Wis. 2d 262, 266, 276 N.W.2d 279 (1979). However, when there is credible evidence that at the time of layoff there exists an assurance, express or clearly implied by circumstances, that work will be resumed at an ascertainable time in the not too distant future, the employment relationship continues. Id. at 267.

In this case, the employer provides work on a day to day basis. Employees are required to sign in at the employer's business each day and wait to discover if they will be sent on an assignment. There is no assurance, express or implied, that they will given work if they appear at the employer's premises. In cases where an employee is not guaranteed an assignment the next day, the employment relationship ends at the end of the work day. In this instance, the employee did all the work that he was assigned on February 14, 2005. He was then laid off. He did not quit.

The commission therefore finds that in week 8 of 2005, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 8 of 2005, the employee was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is modified to conform to the above and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 8 of 2005, if otherwise qualified.

Dated and mailed July 15, 2005
ganlewi . urr : 178 : 1 VL 1054.03  SW 844  VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

In support of its contention that the employee quit, the employer cites a Minnesota statutory provision which provides that if an employee does not affirmatively request an additional job assignment at the completion of an assignment, it is a voluntary quitting. That is not the law in Wisconsin. The commission has modified the ALJ's decision to reflect the commission's position on continuing employment relationships in day labor situations.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2005/07/18