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

NORMA J WEILER, Employee

UW MADISON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05001829MD


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 for the Fall 2004 and Spring 2005 semesters as a tutor for Madison Area Technical College (MATC). For the Fall 2004 semester, the employee worked 16 hours per week. In the Spring semester, the employee's hours were cut to 9 hours per week and she was paid $8.16 per hour. Her duties consisted of making herself available to tutor students who requested assistance. No classes were held during the week of spring break, the calendar week ending March 26, 2005 (week 13). Consequently, the employee did not perform her tutoring duties for the employer that week but, given her "casual" status, she was assigned to do office work for the employer. The employee's employment with MATC ended on May 4, 2005 (week 19), when the summer break began.

Departmental records reflect that as of week 13 of 2005, the employee was filing weekly claims for partial unemployment insurance benefits. The employee initiated that claim in week 31 of 2004 and her base period, upon which benefits were computed, consisted of the second quarter of 2003 through the first quarter of 2004.

Within that base period the employee performed services for the above listed employer, the University of Wisconsin, Madison, in the Spring 2003 semester, from January to May, as a faculty assistant. For the University of Wisconsin, Madison, the employee was appointed to work 20 hours per week, earning $15.00 per hour, and was assigned to teach a lab for 10 students.

Those records further reflect that the employee performed services and received pay in the fourth quarter of 2003, from Northcentral Technical College. The employee testified that she performed instructor services for Northcentral Technical College which ended in October 2003. (1)

The issue before the commission is whether the employee is a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(g).

Wis. Stat. § 108.04(17)(g) (2)  provides, with emphasis added, as follows:

"A school year employee of an educational institution who performs services as described in par. (a) or (d) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed services for any educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will perform the services described in par. (a)  (3) or (d)  (4)  for any educational institution in the period immediately following the vacation period or holiday recess."

The employee/petitioner argued that she was not a school year employee and therefore should not be denied unemployment insurance benefits under the above reasonable assurance provision. The University of Wisconsin, Madison did not appear for the hearing in this matter. Wis. Stat. § 108.02(22m) provides that a

"'School year employee' means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require performance of services on a year-round basis."

In Aumann v. Eau Claire Area School Dist., UI Dec. Hearing No. 03201414EC (LIRC January 9, 2004), the commission held that the existence of an employment contract "was only relevant in ascertaining the period of time during the previous academic year in which the services were required to be performed." It further stated that an implied contract in fact existed based on the actions of the school district and the employee. In Wabnitz v. Oshkosh Public School, UI Dec. Hearing No. 03404679AP (LIRC July 20, 2004), the commission analyzed the nature of the services in comparison to the academic year or term. In this case, while the employee did work during week 13, she did not tutor and the start and end of her employment is clearly tied to the academic year. Even without a written contract, the commission finds that the employee's services were performed as a "school year employee."

While not specifically raised by the employee, implicit within her argument that she was not a "school year employee" is the question of whether week 13 of 2005 was a "week of unemployment" within Wis. Stat. § 108.04(17)(g). A worker may be partially unemployed and still file for unemployment insurance benefits. See Wis. Stat. § 108.02(20) and Wis. Stat. § 108.05(3). In Brookman et al., v. Milwaukee Public School, UI Dec. Hearing No. 89603455MWG (LIRC August 27, 1990), the commission defined "any week of unemployment which occurs during an established and customary vacation period or holiday recess" as "any calendar week in which some period of unemployment occurs during an established and customary vacation period or holiday recess." (5)   Given the employee's claim for partial benefits in week 13, the commission treats this week as a "week of unemployment" within Wis. Stat. § 108.04(17)(g).

In Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991), "such services" was also interpreted as the services that initially qualified the employee for benefits, namely, the base period services, or in this case, the services with the University of Wisconsin, Madison. Given this, the commission must also determine how the employee's services before and after the week 13 break compare with her UW Madison faculty assistant position.

"DWD 132.04 Educational employees: reasonably similar terms and conditions. (1) SCOPE. Under s. 108.04 (17) (a), (b) and (c), Stats., a claimant is ineligible for benefits based upon services provided to or on behalf of an educational institution for weeks of unemployment which occur between academic years or terms or during an established and customary vacation period or holiday recess if the claimant performed the services in the first such year or term or in the year or term immediately before the vacation period or holiday recess and if there is reasonable assurance that the claimant will perform such services for any educational institution in the year or term immediately following the academic year, term, vacation period or holiday recess. The Wisconsin supreme court has ruled that reasonable assurance exists if the terms and conditions of the employment in the academic year or term immediately following the weeks of unemployment which occurred between academic years or terms or during an established and customary vacation period or holiday recess are reasonably similar to those terms and conditions of employment which existed in the year or term before such weeks.

(2) STANDARD. Except as provided under sub. (3), the terms and conditions of the employment for which the claimant receives assurance from an educational institution under s. 108.04 (17) (a), (b) and (c), Stats., for the academic year or term immediately following the weeks of unemployment which occurred between academic years or terms or during an established and customary vacation period or holiday recess are reasonably similar if:

(a) The gross weekly wage is more than 80% 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% 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) EFFECT ON ELIGIBILITY. (a) If the employment for which the claimant receives assurance is not reasonably similar under sub. (2), the claimant is eligible for benefits based on services provided to or on behalf of an educational institution between academic years or terms or during established and customary vacation periods or holiday recesses under s. 108.04 (17) (a), (b), and (c), Stats., if otherwise qualified.
(b) If the employment for which the claimant receives assurance is reasonably similar under sub. (2), the claimant is not eligible for benefits based on services to or on behalf of an educational institution between academic years or terms or during established and customary vacation periods or holiday recesses under s. 108.04 (17) (a), (b), and (c), Stats."

In this case, while the weekly hours meet the 80% standard, the rate of pay did not. As such, the services that the employee had reasonable assurance of before and after the week 13 of 2005 holiday or vacation recess were not reasonably similar to the services for the University of Wisconsin, Madison.

The Commission therefore finds that, with respect to the University of Wisconsin, Madison, the employee performed services in an instructional, research, or principal administrative capacity before and after a customary vacation period or holiday recess occurring in week 13 of 2005 but she did not have reasonable assurance of performing such services, within the meaning of Wis. Stat. § 108.04(17)(g).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the base period wages paid by this employer should be used for the employee's eligibility in week 13 of 2005 and the employee is eligible for benefits as of week 13 of 2005, if otherwise qualified. (6)

Dated and mailed July 15, 2005
weileno . urr : 150 : 1    ET 481

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding his impression of witness credibility and demeanor; only the employee appeared at the hearing. The commission's reversal is based upon a differing legal conclusion.




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Footnotes:

(1)( Back ) For reference purposes only, a separate determination was issued for the Northcentral Technical College dealing with the issue of reasonable assurance for it in week 13 of 2005. That determination found reasonable assurance and, although the employee appealed it, departmental records reflect that she did not appear for the scheduled hearing in that matter, the matter was dismissed and the determination became final.

(2)( Back ) This statutory provision does not necessarily bar payment of unemployment insurance benefits during a week in which reasonable assurance exists; a claimant may be eligible based upon other employment in the base period.

(3)( Back ) Wis. Stat. § 108.04(17)(a) deals with a school year employee's "services in an instructional, research or principal administrative capacity."

(4)( Back ) Wis. Stat. § 108.04(17)(d) deals with a school year employee's "services other than in an instructional, research or principal administrative capacity."

(5)( Back ) At the time of the Brookman decision, the applicable statutory section was numbered Wis. Stat. § 108.04(17)(c).

(6)( Back ) As the employee was nearing the end of her benefit year as of week 13 of 2005, it is unclear whether this decision actually results in additional benefit payment to the employee or merely a reallocation of the benefits paid. The "computational" effect of this decision will be implemented by the Department.

 


uploaded 2005/07/18