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

WILLIAM JOHNNIES, Employee

TOTAL HOME & OFFICE CARE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604010MD


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 initially worked for the employer until he quit in November, 2004. He returned briefly to work for the employer in December, 2005. On March 21, 2006 (week 12), the employer sent the employee a letter at his last known address offering him work. There is no competent evidence that the employee received the letter or was aware of the offer. In any event, the employer was aware that he was working at the time. That is corroborated by department records showing that he reported wages from other employment in that week.

The issue to be decided is whether the employer offered the employee suitable work that he failed to accept or failed, without good cause, to return to work with a former employer that recalled him within 52 weeks after he last worked for that employer.

Wisconsin Statutes § 108.04(8)(c) provides in relevant part as follows:

If an employee fails, without good cause, to return to work with a former employer that recalls the employee within 52 weeks after the employee last worked for that employer, the employee is ineligible to receive benefits. If an employee receives actual notice of a recall to work, par. (a) applies in lieu of this paragraph.

It is undisputed that the employee did not receive actual notice of the recall. The question presented by § 108.04(8)(c), then, is whether the employee was "duly recalled" by the employer. An individual is duly recalled when an employer has followed the contractual procedure or has made a reasonable effort to get notice of the recall to the claimant but was unable to contact the claimant. O'Keefe v. ANR Advance Transportation Co., Inc., UI Hearing No. 98603648MW (LIRC Jan. 29, 1999). In the absence of a contractual procedure, notifying an employee by certified letter is a reasonable method for notifying a worker that work is available. Robinson v. P. A. Staffing Service, Inc., UI Hearing No. 99605379MW (LIRC Oct. 28, 1999). See, also, Hoffman v. Milwaukee Valve Co., Inc., UI Hearing No. 90-001317MD (LIRC Aug. 13, 1990); Plasky v. Crescent Woolen Mills, UI Hearing No. 98402241MW (LIRC March 31, 1999)(a recall letter sent to an employee's last known address by first class mail constitutes reasonable notice); Watkins v. Cornwell Personnel Associates Ltd., UI Hearing No. 03600848MW (LIRC Aug. 13, 2003)(attempting to contact employee at last telephone number of record and leaving messages, and sending certified letter to employee's mailing address constituted reasonable effort by employer to get notice of recall to employee).

Under the circumstances present here, sending the employee a letter to his last known mailing address constituted a reasonable effort by the employer to get notice of recall to the employee.

The remaining issue is whether the employee had good cause for failing to accept the recall.

The employee was working for another employer at the time of the recall. Employees are not required to quit work to accept a recall from another employer. Therefore the employee had good cause.

The commission therefore finds that in week 12 of 2006, the employee failed to return to work with a former employer that had recalled the employee within 52 weeks of the employee's last work for the employer, but that this failure was with good cause, within the meaning of Wis. Stat. § 108.04(8)(c).

DECISION

The decision of the administrative law judge is modified, and as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 12 of 2006, if he is otherwise qualified.

Dated and mailed October 27, 2006
johnnwi . urr : 178 : 1  AA 110

/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 the employee worked for it within 52 weeks of the recall. Department records corroborate this. The commission has modified the decision to resolve the issue under the recall statute. However, because the employee had good cause to refuse the recall, he remains eligible for benefits.


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