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

THERESA D MARSHBANKS, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600765MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 46 of 2005, if otherwise qualified.

Dated and mailed April 21, 2006
marshth . usd : 115 : 1  PC 714.02

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked for the employer, a temporary help agency.

She accepted and worked an assignment at Bardes Plastics from September 12 through October 4, 2005; at Meltric from October 12 through 14, 2005; and at Everbrite from October 31 through November 1, 2005.

When her assignment with Everbrite ended on November 1, the employer told her it would have an assignment for her the following week. The employer contacted her on November 9 and offered her an assignment that day with Bardes Plastics. The employee did not accept this assignment because she was feeling ill on November 9. The employee indicated, however, that she would be able to work the following day and was told by the employer to report to Bardes on November 10 for first shift work. The employee reported as instructed but was told by Bardes that they did not have enough work for her that day. The employee contacted the employer with this information.

What occurred next is the subject of dispute.

The employer's only witness was Micah Natterstad, the branch manager. He testified that, according to the employer's log of contacts with the employee (exhibit #1), the employee spoke with Human Resource Generalist Denise Kujawa on November 10; Kujawa told the employee Bardes had indicated they would have work for the employee the next day and she should report to Bardes on November 11 for first shift as a result; and the employee indicated she would do so.

Natterstad further testified that, according to the employer's log, the employer was unaware that the employee had not reported to work at Bardes on Friday, November 11, or Monday, November 14, until it received a report from Bardes the afternoon of November 14; Human Resource Generalist Ben Alger phoned the employee as a result and, when asked why she had not reported to work at Bardes on November 11 and 14, the employee stated she "didn't want to go up there again;" and Alger told her that was considered a quitting and the employee said that was fine.

The employer's log reflects that, on November 18, the employer left a phone message for the employee asking whether she was still available for work, and the employee did not return the call.

Natterstad testified that the employer's log records every interaction or attempted interaction with an employee, including the date and time of the interaction or attempt, and this record cannot subsequently be modified. He also testified that it is the employer's practice to tell employees who are placed on definite layoff to call the employer during the period of layoff to determine whether work is available, and that the employee had followed this practice in the past.

The employee testified that, when she contacted the employer on November 10, she was told that her place had been taken at Bardes that day by a standby person, and the employer would give the employee a call if the standby person did not work out for Bardes. The employee agreed that the employer called her on Monday, November 14, to ask whether she had worked for Bardes on Friday, November 11. However, the employee testified that, when she told the employer she had not, nothing else was said. The employee testified that someone from the employer left a phone message for her on November 18, but did not ask her to return the call, and the message stated that she "needed to return to work at Bardes on Monday."

The ALJ credited the employee's testimony that, on November 10, "an employer representative told the employee that the employer would call her if work was available," but "the employer did not call."

Based on this credibility determination, the ALJ concluded that, because the employer did not provide work for the employee after November 1, and the separation did not result from the employee's words or actions, the separation was a discharge.

The reasoning by the ALJ implies that the separation occurred on November 1 (week 45). However, the ALJ concluded that the separation occurred in week 46. The commission agrees.

Even in the absence of a specific recall date, a temporary layoff will support a conclusion that the employment relationship continued if the employer, at the time of layoff, actually had a reasonable basis for believing that it would have work for the employee at an ascertainable time in the near future; communicated this to the employee; and the employee was available and willing to accept such work. Hanseder v. Lieds Nursery Co., Inc., UI Hearing No. 00400393AP (LIRC April 10, 2000) (employment relationship continued when employee on temporary layoff until weather permitted production to resume in the spring); Rohlich v. Cornwell Personnel Associates Ltd., UI Hearing No. 03604670MW (LIRC March 23, 2004); Zenil v. Seek, Inc., UI Hearing No. 02403573AP (LIRC April 10, 2003); Jones v. Seek, Inc., UI Hearing No. 99601034MW (LIRC July 6, 1999). This is what occurred here, i.e., on November 1, the employer assured the employee that it would have work for her the following week, and actually offered her work the following week on November 9.

The next question then is whether the employment relationship ended when, on November 9, the employee refused the employer's offer of work.

Generally, when a temporary help employee refuses an assignment during a period of continuing employment, it is considered a quit. The commission has carved out an exception when the employee has a valid reason for refusing the assignment. Mateske v. Adecco Employment Services, Inc., UI Hearing No. 98001368MD (LIRC July 15, 1998) (no separation where temporary help employee refused offer of telephone work because of hearing loss). Here, the employee was ill which constitutes a valid reason for refusing an offer of work. As a result, the employment relationship continued at least through November 9.

On November 10, the employee reported for an assignment at Bardes but was told there was no work there for her that day. Under the circumstances present here, this alone would not sever the employment relationship.

The remaining questions then are whether the separation which occurred on or after November 10 was a quit or a discharge. Under the version of events offered by the employee, i.e., that she was told the employer would contact her for her next assignment but failed to do so, the separation would be a discharge; but under the version offered by the employer, i.e., that the employee failed to accept the Bardes assignment on November 11 and thereafter, it would be a quit.

This leads to an examination of the evidentiary status of the employer's contact logs. Even though they may qualify as a record of a regularly conducted activity within the meaning of Wis. Stat. § 908.03(6), (1)   this statutory exclusion from the hearsay rule would not apply to the employer's characterization in these contact logs of statements made by the employee or the employer's human resource generalists during their phone interactions. See, Young v. Flex-Staff Temporary Serv-Applet, UI Hearing No. 00401782AP (LIRC Sept. 8, 2000)("while the computer printout may be admissible...under Wis. Stat. 908.03(6), the document proves at best that an offer was entered into the computer, not that one was made or received by the employee"); Sanders v. Cornwell Personnel Associates Ltd., UI Hearing No. 05602427MW (LIRC Aug. 12, 2005); Brookman v. Cornwell Personnel Associates, UI Hearing No. 02607251MW (LIRC June 24, 2003); Schmelling v. Kelly Services, Inc., UI Hearing No. 97600724KN (LIRC Feb. 14, 1998); Holman v. Cornwell Personnel Associates, UI Hearing No. 04605994MW (LIRC Nov. 15, 2004).

The employer was well aware, given its history with this issue, that its contact logs would be considered hearsay evidence by the department/commission as to the statements made by and to the employee, and failed, despite this awareness, to bring to the hearing those staff members who had interacted with the employee on November 10, 11, 14, or 18.

The ALJ credited the employee's testimony as to what occurred in these interactions, and the commission has found no persuasive reason to overturn this credibility determination.

As a result, the record supports a finding that the employer did not offer the employee, on or after November 10, any assignment or any assurance that an assignment would be forthcoming in the near future. Accordingly, the employment relationship was severed on November 10, 2005, (week 46); the separation was a discharge because it was initiated by the actions or inactions of the employer; and there is no basis in the record from which it could be concluded that the employee engaged in any misconduct.

cc: Unemployment Appeals Clinic



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Footnotes:

(1)( Back ) (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with s. 909.02(12) or (13), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.

 


uploaded 2006/04/24