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

KHELAN R LASTER, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05600756MW


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.

Following the employer's petition for review, the commission ordered the taking of additional evidence regarding documentation the employer originally offered but which was not received. The remand hearing was conducted on August 24, 2005, and the matter was returned to the commission for disposition.

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The employee worked for 11 months for the employer, a temporary placement agency. Most recently, he worked for five months as a general packager for one of the employer's clients. He earned $8.00 an hour and his last day of work was January 4, 2005 (week 2). The employee was absent on January 5 and 6 due to transportation difficulties.

Upon hire, the employee signed an employment policy with the employer acknowledging that the nature of his services for the employer would involve various assignments with clients at a variety of locations, times and shifts.

On Thursday, January 6, 2005 (week 2), the employer notified the employee that his five-month assignment with the client had ended and that the employer would be contacting him within the next seven days with continuing employment.

On Friday, January 7, 2005 (week 2), the employer contacted the employee and offered him a first shift position performing hand packaging work with a different client business. The rate of pay was to be $7.00 an hour and the work was to start on Monday, January 10, 2005 (week 3). The employee declined the position and the employer informed him that his rejection of the position would be treated as a quitting. The employee also informed the employer that he no longer wished to work in temporary positions.

Departmental records reflect that the employee initiated a claim for unemployment insurance benefits on January 7, 2005 (week 3), reporting a discharge from the employer. Those records further reflect that on January 10, 2005, the employer returned a separation questionnaire challenging the employee's eligibility. The initial determination denied unemployment insurance benefits. The employee timely appealed and, following a hearing, the appeal tribunal decision reversed and allowed unemployment insurance benefits. The employee received unemployment insurance benefits totaling $2,724.00 for the calendar weeks ending January 15, 2005 (week 3) through May 21, 2005 (week 21).

The first issue to be decided is whether the employee quit or was discharged and, in either case, whether he is eligible for unemployment insurance benefits.

At the original hearing in the matter, the employee contended that the employer discharged him when it notified him that his five-month assignment had ended. The employer contended that its simultaneous assurance that it would secure employment for the employee within seven days continued the employment. The employee's contention cannot be sustained.

"The test to determine whether an employment relationship continues hinges on the credibility of the assertion that the temporary help employer actually had a foreseeable reassignment for the laid-off employee." Wimes v. Cornwell Personnel Associates Ltd., UI Hearing No. 04603649MW (LIRC August 17, 2004).

The commission credits the employer's statement that it planned to quickly offer continuing work through additional assignments for the employee. In fact, within a day of notifying the employee of the completion of the prior assignment, the employer offered the employee another assignment to start the next Monday, January 10, 2005 (week 3). Although the employee did not appear at the remand hearing and argued that he did not receive an assignment offer on January 7 at the original hearing, he did concede at the original hearing that, on the 7th, he informed the employer that he did not wish to perform temporary work. It was the employee's decision whether to maintain a continuing employment relationship with the employer. The commission finds that his refusal of a continuing assignment on January 7 and his refusal to generally work in a temporary capacity, given the nature of the employer's business, constituted a voluntary termination for unemployment insurance purposes as of week 3 of 2005, the next workweek, when the assignment was to begin.

Next, Wis. Stat. § 108.04(7) provides that a worker who quits employment is ineligible for unemployment insurance benefits unless the quitting was with good cause attributable to the employer or within another of the enumerated statutory exceptions.

While the employee's decision to no longer work for the employer given the temporary nature of the work was a valid personal decision, it does not fall within any exception to allow for the immediate payment of unemployment insurance benefits. In particular, even though the employee denied understanding that the employer was a temporary agency, his denial is undercut by the content of the employment policy he signed upon hire. The employee did not present any other evidence to establish that his quitting fell within any exception.

The commission therefore finds that in week 2 of 2005 the employee was not discharged within the meaning of Wis. Stat. § 108.04(5) but that in week 3 of 2005, he voluntarily terminated his employment and his quitting was not within an exception within the meaning of Wis. Stat. § 108.04(7)(a) of the statutes.

Given the above findings, the employee was not entitled to the $2,724.00 in unemployment insurance benefits that he received and the next issue to be decided is whether he must repay the erroneously paid benefits.

As there is no evidence of employer error as a basis for the erroneously paid benefits, pursuant to Wis. Stat. § 108.22(8)(c), the requirement that the employee repay the overpaid benefits will only be waived if the overpayment (1) was due to department error and (2) was without fault, false statement, or misrepresentation on behalf of the employee.

In this case, the overpayment was created by the commission's reversal of the appeal tribunal decision. The commission's reversal is due to reaching a different legal conclusion after receipt of additional evidence at the remand hearing; the overpayment was not due to departmental error. (1)

The commission therefore further finds that waiver of the benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is modified to conform with the above findings and amended as to weeks of issue and, as modified and amended, is reversed. The employee is ineligible for unemployment insurance benefits as of week 3 of 2005 and until four weeks have elapsed since the end of the quitting and the employee has earned four times his weekly benefit rate in subsequent covered wages. The employee is required to repay the $2,724.00 overpayment.

Dated and mailed October 26, 2005
lastekh . urr : 150 : 8  VL 1025

/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 prior to reversing the appeal tribunal decision. In particular, the reversal is based on additional evidence obtained at the remand hearing and which was not before the administrative law judge originally.

 

FURTHER NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.



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Footnotes:

(1)( Back ) Specifically, while the remand hearing was ordered to allow the employer the opportunity to present evidence regarding a document offered but not received, it also brought the witnesses who spoke with the employee on January 6 and 7, 2005 and who made the applicable notations within the alleged business record.

 


uploaded 2005/10/31