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

NADDHA LOR, Employee

SIMPLY STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06200900EC


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 the payment of unemployment benefits as of week 5 of 2006, if otherwise qualified.

Dated and mailed June 20, 2006
lornadd . usd : 150 : 1 VL 1025  VL 1007.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The Department of Workforce Development petitioned the appeal tribunal decision arguing that the discharge finding was improper and that the employee voluntarily terminated her employment by declining an assignment in the calendar week ending February 4, 2006 (week 5). The department further requested that upon a finding of a quitting, the matter be remanded for additional testimony to determine whether any quitting exception applied.

The hearing was conducted in person in Eau Claire, WI with only the employer appearing. The employer's co-owner and president, Chris Maley, was the only witness. The record reflects that the employee was told that she would no longer be working for the client due to attendance reasons. During the conversation the employee was then told that based upon her past good work performance and due to the fact it was an attendance issue, the employer would be "willing to give her another opportunity to reclaim herself." The employee was offered and declined a plastics position at another client business located ten miles further than where she had been working at. After the employee's refusal, she was told that the employer would contact her if something else arose and she was to check in with the employer as well.

While the "opportunity to reclaim herself" language might suggest that the employee's decision and behavior at the new assignment would determine her status with the employer, the employer still had the burden of establishing that the employee's actions were so inconsistent with the continuation of the employment relationship as to evince a voluntary termination of it. See Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980) and Tate v. Industrial Commission, 23 Wis. 2d 1, 6 (1963). Yet, the commission agrees with the administrative law judge that the testimony supports a finding that the employee did not quit. In particular, the record does not reflect that the employee was verbally apprised that she was jeopardizing her employment by refusing the week 5 offer and no policies or procedures were received that would notify her that a refusal of continuing work would be treated as a quitting. More importantly, the employer's owner herself, testified that she considered the employee to be in a continuing employment relationship until February 21, 2006 when another refusal occurred. The employer considered that second refusal a severance of the employment. (1)

In Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 04605447MW (LIRC February 2, 2005).

The nature of the relationship between an employee and a temporary help agency contemplates that a variety of assignments will be offered. An employee's failure to accept one specific assignment at a particular location does not, in and of itself, reflect an intent to quit, just as a failure to immediately offer an employee another assignment after a refusal of ongoing work, does not translate into a discharge. See Thompson v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 03604528MW (LIRC January 30, 2004). Instead, where there is "evidence that at the time of layoff there existed assurance, expressed or clearly implied by the circumstances, that work and wages would be resumed at an ascertainable time in the not too distant future, the relationship continues." A. O. Smith Corporation v. DILHR, 88 Wis. 2d 262, 267, 276 N.W.2d 279 (1979).

In conclusion, the administrative law judge's assessment of the separation of employment as a layoff due to a lack of work, not for misconduct, was proper. For these reasons, as well as those set forth by the administrative law judge, the appeal tribunal decision is affirmed.

cc: Daniel J. Larocque



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


Footnotes:

(1)( Back ) The ALJ remanded the February 21 refusal for investigation into its effect on the employee's eligibility. On May 4, 2006 a determination was issued finding that the employee refused an offer of work in the calendar week ending February 25, 2006 (week 8) without good cause. The determination further found that benefits were erroneously paid based upon the employer's failure to provide complete and correct information during the investigation. The determination was not appealed and became final on May 18, 2006.

 


uploaded 2006/06/26