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

JEREMY P MCNAIR, Employee

MANPOWER, Employer
 

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002306MD


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 placement agency, in various assignments since 2004. His last assignment for the employer ended on April 3, 2005.

When the employee reactivated his application with the employer, in March of 2006, he indicated he was available only for second shift work and wanted a job paying $10.00 or more per hour. On May 2, 2006, the employer offered the employee a job assignment as a machine operator at a pay rate of $10.72 an hour. The assignment was on second shift, and was to begin the following day. The job would have been long term and was considered a
"temp-to-hire" position which could have led to permanent hire.

Upon being offered the job assignment, the employee told the employer he needed to think about it and would call back by 8:30 a.m. the next day with his decision. The next morning the employee called the employer and stated that he was interested in the assignment, but could not start until May 4. The employer replied that other people were interested in the job and that it could not hold the position open for him. The employee indicated that he wanted to think about it and would call the employer right back. The employee called back a few minutes later and stated that he was not prepared to start work that day.

The issue presented is whether the employee had good cause for refusing the offer of work.

Wisconsin Statute § 108.04(9)(b) provides, in relevant part:

(9) PROTECTION OF LABOR STANDARDS. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
. . .
(b) If the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

Shift arrangements that do not apply to at least 25% of similar job opportunities are considered to be non-prevailing in the locality. In this case, certified labor market evidence indicates that less than 20% of suitable jobs in the employee's labor market are on second shift. Consequently, the shift offered the employee was non-prevailing. However, the labor standards portion of the statute addresses work which is substantially less favorable "to the individual." There are some instances in which non-prevailing conditions of employment can actually be preferable to an individual claimant. The Department of Labor has specifically stated that, if an individual has a preference for a non-prevailing shift, then that shift is not a condition of work that is less favorable to the individual, and UI may be denied. See, UIPL 41-98 Change 1, July 19, 2000;  Moore v. United Parcel Service, Inc. (LIRC, Nov. 6, 2003).

In this case the employee expressed a preference for second shift work and, in fact, advised the employer that second shift was the only shift for which he was available. Consequently, the commission is unable to conclude that second shift work was substantially less favorable to the employee, nor is there any basis to conclude that he had other good cause for failing to accept the offer of work.

The commission therefore finds that in week 18 of 2006, the employee failed, without good cause, to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a), and that the wages, hours, including arrangement and number, or other conditions of that work were not substantially less favorable to the employee than those prevailing for similar work in the labor market, within the meaning of Wis. Stat. § 108.04(9)(b).

The commission further finds that the employee was paid benefits in weeks 18 through 31 of 2006 in the total amount of $3,052, 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 18 of 2006 and until four weeks have elapsed since the end of the week in which the failure occurred and he has earned wages in covered employment after the week of the failure equaling at least four times his weekly benefit rate which would have been paid had the failure not occurred. The employee is required to repay the sum of $3,052 to the Unemployment Reserve Fund. Fifty-six dollars of the benefit check for week 19 of 2006 was forfeited. Since benefits are now denied for this week, it cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $56.

Dated and mailed September 14, 2006
mcnaije . urr : 164 : 2  SW 844

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

Subsequent to the issuance of the appeal tribunal decision the employee submitted a written explanation of his reasons for failing to appear at the hearing. The employee states that he thought he would be called at his cell phone number, but instead the administrative law judge called his father's home number, which was disconnected two weeks ago. However, the hearing notice notified the employee of the number at which he would be called, the same phone number the employee provided the department when he initiated his claim, and told him to advise the hearing office immediately if the number was incorrect. The employee did not notify the hearing office to contact him at a different number. The employee would have had no reason to believe that he would be contacted at his cell phone number, since he did not provide that number to the hearing office.

NOTE: The commission did not confer with the appeal tribunal about witness credibility and demeanor. The commission's reversal of the appeal tribunal decision does not depend on an assessment of witness credibility 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.

cc: Manpower, Attn Greg King, Janesville, WI


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uploaded 2006/09/18