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

MICHAEL W KNOTT, Employee

JOBS PLUS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06200535EC


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a job placement agency, off and on for approximately four years. His most recent assignment was as an assembler with SCA North American Packaging (hereinafter "SCA"). The employee worked for SCA for about one week on second shift. His last day of work was January 20, 2006 (week 3).

The employee stopped reporting for work at SCA because of a wrist injury, and because he got into an altercation with another worker and thought it was not in his best interests to return. Although the employer's policy required the employee to contact it directly if he could not report for work, the employee did not notify the employer of his absences. Instead, the employee asked his roommate, who also worked at SCA, to let the supervisor at SCA know that he hurt himself and would not be in for a few days.

On January 25, 2006 (week 4), the employee's third day of absence, the employee's roommate informed him that SCA was not going to let him come back. The employee did not contact SCA or the employer to confirm that the assignment had ended.

On January 26, 2006 (week 4), the employer learned that the employee had been absent without notice since January 20. The employer telephoned the employee and left a message asking him to call it about the assignment. However, the employee did not return the call. He did not perform services for the employer thereafter.

The question to decide is whether the employee quit or was discharged and whether he is eligible for benefits based upon that separation.

A determination of whether an employee has quit a temporary help assignment depends on the individual circumstances of each case. Mejias v. Seek, Inc. (LIRC, April 3, 1998). In this case, the employee had an ongoing assignment, but stopped reporting for work without notice to the employer or to its client, SCA. Although the employee's roommate informed the employee that he was not allowed back on the job, the employee did not confirm this with the employer and disregarded a message from the employer asking him to call it to discuss the assignment. The employee conceded that he was "pretty much irresponsible" in how he handled things.

The employee's assignment had not ended at the point the employee stopped reporting for work. Further, the employer maintained that it might have been able get the employee back to work for SCA had he returned its call and explained why he missed four days of work.

Under all the facts and circumstances, the commission believes that the employee voluntarily terminated his employment in week 4 of 2006 by failing to report for work or provide notice of absences for four consecutive days, and by failing to return a telephone call from the employer to discuss the status of the assignment.

Having concluded that the employee quit, a secondary issue arises as to whether his quitting falls within any statutory exception permitting the immediate payment of benefits. The commission finds it does not. The only exception that might apply is the "quit, same good cause" exception, which applies when an employee accepts work he could have refused under Wis. Stat. § 108.04(8), and then quits the work with the same good cause within ten weeks. However, while certified labor market evidence submitted at the hearing indicates that second shift work is not prevailing in the labor market, it cannot be found that it was substantially less favorable to the employee where he did not object to working second shift and where, in fact, the employer contended he specifically requested second shift work.

The commission, therefore, finds that in week 4 of 2006, the employee quit, and not within any statutory exception permitting the immediate payment of benefits, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee has a total overpayment of $2835, of which $60 (already recovered) is included in overpayment amounts set forth by notices of overpayment (form UCB-38 dated 2-21-06 and form UCB-37 dated 4-28-06). The employee received benefits in weeks 4 of through 15 of 2006 in the total amount of $2775, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of 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 a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 4 of 2006 and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least 4 times his weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay the sum of $2775 to the Unemployment Reserve Fund. The employee requalified as of week 21 of 2006.

Dated and mailed June 15, 2006
knottmi . urr : 164 : 4  VL 1025  VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review the employer argues that it has a policy that workers are required to contact the employer at the conclusion of an assignment. The employer submits documentation in support of this assertion. By law the commission is required to base its review solely on the sworn testimony and documentary evidence submitted at the hearing before the administrative law judge. Therefore, the commission's decision to reverse was made without consideration of the document in question or the factual assertions raised by the employer for the first time in its petition for review. The commission notes that it does not consider the existence of a policy requiring the employee to contact the employer at the conclusion of an assignment to be material to this case, given that the evidence indicates the employee voluntarily terminated his employment prior to the end of the assignment.

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon a differing assessment of the credibility of the witnesses, but is as a matter of law.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.


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uploaded 2006/06/20