DAVID E MILLER, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 5 of 2005, if otherwise qualified.

Dated and mailed August 16, 2005
milleda . usd : 135 : 2  SW 845.03

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In its petition for commission review, the employer argues that the employee quit his employment by failing to accept an assignment. However the record does not support a finding that the opportunity presented to the employee was a bona fide offer of work.

The potential assignment required that the employee submit to a drug test, a criminal background check and submit a resume. The employer argues that the drug test and criminal background check were waived because the employee had recently submitted to these procedures for a previous assignment. However, it is not clear from the record that the employee was made aware that these contingencies to accepting the assignment were waived by either the employer or its client. Furthermore, the employee did not submit a resume and there is no indication that this requirement was waived by the employer's client. While the employer argues that the resume and/or interview were essentially pro forma, it nonetheless was a contingency.

The commission has previously noted that in order for an offer of work to be considered bona fide, it should be of such definite character that nothing more than a simple acceptance is necessary to form a contract of hire. K & H Construction, Inc. v. Ind. Comm. and Severson, Case No. 124-118 (Dane Co. Cir. Ct., March 8, 1968); Christine L Schuele v. Cornwell Personnel Associates LTD, UI Hearing No. 03002139WK, (LIRC January 30, 2004). A bona fide offer is one that is complete and requires no action on the part of the employee to complete it. Webber v. PA Staffing Services, Inc., UI Hearing No. 99601291MW (LIRC June 9, 1999). (an offer which did not include the location of the job but required the employee to contact the employer to learn it not a bona fide offer because not complete); and Jordan v. Personnel Alternatives, Inc., UI Hearing No. 93610008MW (LIRC September 2, 1994) (offer which stated the duties of the position, the wage rate, the starting date and the hours of the work is a complete and bona fide offer).

Applying the law to the facts at hand, the prospective assignment referred to the employee was not a bona fide offer of work because of the contingencies associated with the potential assignment. This assignment required something more than a "simple acceptance" on the employee's part and thereby does not constitute a bona fide offer of work. Furthermore the employee's failure to pursue this opportunity does not constitute a quit.

cc: Benjamin M. Alger

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uploaded 2005/08/19