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

KATHLEEN L. REIN STEINGRABE, Employee

HUSTISFORD SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04611343WB


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 has worked for 28 years for the employer, a school district. For the 2004-2005 school year, the employee signed a contract to work in an instructional capacity as a teacher/library media specialist for the employer's elementary and high school. The employee's position was a .3 position, equivalent to four hours per day, three days a week, with a weekly salary of $394.26.

Department records reflect that, on July 15, 2004, a determination was issued holding that the employee was eligible for unemployment insurance benefits as of the calendar week ending June 12, 2004 (week 24) (1) because, although the employee worked the 2003-2004 school year, her position was reduced from 60 percent to 30 percent for the 2004-2005 school year. The determination was not appealed.

Departmental records further reflect that the employee filed for and received partial unemployment insurance benefits in the calendar weeks ending June 12, 2004 through September 11, 2004 (weeks 24 -37) and October 30, 2004 (week 44). The employee had a weekly benefit rate of $329.00 and was able to earn up to $514.00 per week and still be eligible for partial unemployment insurance benefits according to the partial benefit computation found at Wis. Stat. § 108.05(3). The employee's weekly benefit rate was determined by her base period employment, which consisted solely of her services for the employer in the second quarter of 2003 through the first quarter of 2004.

The week of issue is the calendar week ending November 27, 2004 (week 48), when school was not in session Wednesday through Friday, November 24 through 26, 2004 for the Thanksgiving holiday. In addition to the employee's part time work for the employer, as of week 48 of 2004, the employee also worked as a part-time bus driver for another employing unit. In week 48, the employee worked four of her normal eight hours for the employer but she received her same rate of pay, $394.26, because she was salaried. She filed a partial claim for unemployment benefits (2) and was denied at the initial determination and the appeal tribunal decision level.

Wis. Stat. § 108.04(17)(g) provides, as follows:

"A school year employee of an educational institution who performs services as described in par. (a)  (3)  or (d) (4)  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) or (d) for any educational institution in the period immediately following the vacation period or holiday recess."

The issue before the commission is whether, as of week 48 of 2004, the employee was a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(g).

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."

The employee's services were performed as a "school year employee," within the meaning of the above; she was employed by and her services were on behalf an educational institution and the services were not performed on a year-round basis.

Additionally, while the employee worked partially for the employer and was paid her normal weekly salary, the commission finds that week 48 was still a "week of unemployment" within Wis. Stat. § 108.04(17)(g). Specifically, in Brookman et al., v. Milwaukee Public School, UI Dec. Hearing No. 89603455MWG (LIRC August 9, 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)

Before and after the Thanksgiving recess the employee's services were the same. Yet, 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. Given this, the commission must also determine how the employee's services before and after the week 48 recess compare with her base period services, primarily consisting of the .6 position.

Wis. Admin. Code § DWD 132.04 provides guidance as to what is reasonably similar. While the code section does not specifically reference Wis. Stat. § 108.04(17)(g) it does reference an "established and customary vacation period or holiday recess," which is the claimant's situation in week 48 of 2004. The standard set forth in Wis. Admin. Code § DWD 132.04(2) is to treat the terms and conditions of the work as 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."

In this case, the employee's position was cut by 50 percent from the 2003-2004 to the 2004-2005 school years. Thus, work that the employee had reasonable assurance of before and after the week 48 of 2004 holiday or vacation recess was not reasonably similar to her base period services.

The Commission therefore finds that, with respect to the Hustisford School District, 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 48 of 2004 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 48 of 2004 and the employee is eligible for benefits as of week 48 of 2004, if otherwise qualified. The commission has used departmental records regarding the employee's base period employment in reaching its decision in this matter. If the commission's findings regarding these records are in error, the department is advised to petition the commission for reconsideration of this matter.

Dated and mailed August 10, 2005
reinska . urr : 150 : 1  ET 481

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ 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 because the commission's reversal is based upon a differing legal conclusion after application of Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991) .



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Footnotes:

(1)( Back ) Presumably, the first week of the break between the 2003-2004 and 2004-2005 school years.

(2)( Back ) According to the employee's testimony and the partial benefit computation, approximately $31.00 in partial benefits are at issue.

(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).

 


uploaded 2005/08/12