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

KELLY M ERICKSEN, Employee

ADECCO USA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05607015RC


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 approximately ten and one-half months as a temporary worker for the employer, a staffing service. The employee's last day of work was July 14, 2005 (week 29).

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with that employment.

On September 1, 2004, the employee began working a full-time assignment as a shift sorter at Limtech. This was a second shift assignment which paid $8.00 per hour. Her wages eventually increased to $8.50 per hour. She was moved into the assembly department.

In June of 2005, the employee was moved from the assembly department into the shipping and receiving department at Limtech.

On or about July 14, 2005, the employee was informed that Limtech was going with another staffing service by the name of Personnel, Inc. Workers were given the option of staying at Limtech under Personnel, Inc. or remaining with Adecco. The employee stayed at Limtech because she had been informed Limtech would hire her permanently. She asked about positions through the employer but was informed there was nothing open, and if she left Limtech, the employer would not have been able to place her. The employee filled out paperwork for Personnel, Inc. indicating she was becoming an employee of Personnel, Inc.

On or about July 24, 2005, the employee was informed that her position at Limtech was being eliminated. She contacted the employer that day to find out if it had any positions available and was told it did not.

The employee did not intend to quit her job with the employer. The employee was given a choice of staying employed by becoming an employee of the new temporary help agency, or remaining with the employer. However, had the employee remained with the employer, she would not have been given an assignment, and she would have been unemployed. As such, she did not have the same choice as a worker who was choosing between two assignments or two employers. The employer did not dispute the employee's testimony that it had no assignment for her had she chosen to stay with the employer.

In Dana M Stewart v. Adecco USA, Inc. UI Dec. No. Hearing No. 04201604MD, (LIRC February 8, 2005), the commission concluded that "(T)his case is governed by Parish v. Adecco Employment Services, Inc., UI Dec. Hearing No. 99003656BO (LIRC, Feb. 28, 2000). That case concerned exactly this issue, that is, where an employee working for one client of a temporary help employer "transfers" to direct employment with the client pursuant to an agreement between the employer and the client. In the present case, there is an agreement between the employer and the client pursuant to which, after 90 days, workers hired by the employer are eligible to be hired directly by the client. In order for the separation from employment with the employer to be considered a quit and not a discharge, the employer "must establish both that the employer had additional work available that the employee could have performed with another client and that the employee was aware that she could decline to accept employment with the client and continue such work with the employer." Parish v. Adecco Employment Services, Inc., supra. In the present case, the employer established neither criterion. For this reason, the separation is properly characterized as a discharge and not as a quit."

Likewise, in the instant case, the employee did not quit. While the employee was told she could remain an employee of the employer, she was also told she would not have an assignment. Under the circumstances, the employee's actions were not the result of her intention to quit, but the result of the employer's inability to offer her continuing work.

The commission therefore finds that in week 29 of 2005, the employee did not quit, but was discharged by the employer and not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 29 of 2005, if otherwise qualified.

Dated and mailed December 23, 2005
erickke . urr : 145 : 4 VL 1025

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ's decision based on a different impression of witness credibility and demeanor, but rather because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

cc: Labor Management Group


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