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

CODY M GABRIELSEN, Employee

RANDSTAD (US) LLC GEN PTR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604382MW


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 18 of 2006, if otherwise qualified.

Dated and mailed November 3, 2006
gabrico . usd : 115 : 8  SW 800

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employer is a temporary staffing agency.

The employee worked in a single assignment for the employer, in chemical plating for Electroplate, for nine months. This assignment ended at Electroplate's request on April 17, 2006, due to the employee's unsatisfactory attendance record.

On Friday, April 28, 2006, the employee applied for work with another staffing agency, AeroTech. AeroTech indicated to the employee on April 28 that there was an available second shift assignment paying $8 per hour which would be offered to him if he passed the required drug test. The employee submitted his resume, completed application paperwork, and took the required drug test at AeroTech on April 28.

On Monday, May 1, 2006, AeroTech contacted the employee to notify him that he had passed the drug test, and offered him the assignment discussed on April 28. The employee accepted this offer, and began the assignment on Tuesday, May 2, 2006.

Also on May 1, the employer contacted the employee and offered him a second shift assignment paying $7 per hour, which was expected to last three weeks. The employee declined this assignment, explaining that he had accepted another position.

The first question is whether the May 1 offer from the employer would be considered an offer of new work, or instead an offer of a new assignment as part of a continuing employment relationship. See, Narlock v. Cornwell Personnel Associates Ltd., UI Hearing No. 04603511MW (LIRC March 8, 2005).

The evidence of record does not establish that the employment relationship between the employer and the employee continued after April 17, 2006, i.e., the evidence of record does not show that the employer, at the end of the Electroplate assignment, offered the employee another assignment or credible assurance that another assignment would soon be forthcoming. See, Jones v. Seek, Inc., UI Hearing No. 99601034MW (LIRC July 6, 1999)(a temporary help employment relationship continues when there is credible assurance that work will be resumed at an ascertainable time in the not too distant future); Smith v. Cornwell Personnel Associates Ltd., UI Hearing No. 03608179MW (LIRC May 27, 2004)(end of assignment initiated by employer and, in absence of offer of new assignment or credible assurance that offer would soon be forthcoming, employment relationship ended).

As a result, the employer's May 1 offer of work to the employee was an offer of new work.

Wisconsin Statutes § 108.04(8)(a) provides as follows, as relevant here:

(a) If an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible to receive benefits until 4 weeks have elapsed since the end of the week in which the failure occurs and the employee earns wages after the week in which the failure occurs equal to at least 4 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government....

It is not clear from the record whether the assignment offered by the employer on May 1 was for "suitable work."

However, even if this offer was for suitable work, the employee had good cause for refusing it.

The employee refused this offer in order to take a higher paying job, which he had already accepted, and which had the potential to last for a longer period of time than the three-week assignment offered by the employer. This would satisfy the good cause standard.  See, White v. Meyer Realty & Management, Inc., UI Hearing No. 98004381MD (LIRC May 20, 1999); Latus v. J. F. Cook, Inc., UI Hearing No. 99608494MW (LIRC Feb. 24, 2000).

In its petition, the employer argues that the employee refused an offer of suitable work and should be ineligible for benefits as a result. However, such a refusal, as discussed above, does not result in a disqualification if, as here, good cause for the refusal is established within the meaning of Wis. Stat. § 108.04(8)(a).

cc: Staffing Resource - Milwaukee, WI



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uploaded 2006/11/06