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

PATRICIA R GEHRI, Employee

ROYALL SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002736BO


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 began working for the employer, the Royall School District, in 1995 as an instructional aide. In the 2005-2006 school year, she worked as a full-time library aide. The last day of the 2005-2006 school year was June 8, 2006 (week 23).

On March 28, 2006 (week 13), the employee was notified that the employer would be reducing the number of library aide positions from three to two beginning in the 2006-2007 school year. (1)   Additionally, for the two remaining positions, the library aide hours would be reduced by 15 minutes per day. Since the employee was the least senior of the three library aides, her position was effectively eliminated.

Also for the 2006-2007 school year, the school district eliminated a 40-hour EEN Aide position, a 37.5-hour EEN Aide position and reduced the hours for an LD EEN Aide position from 40 to 18.75.  (2)

According to the employee's contract with the employer, although her library aide position was eliminated, she had the right to "bump" into another aide position if it was occupied by an individual with less seniority. For the 2005-2006 school year, the employer employed 17 individuals in various titled aide positions. The employee was 13th of those listed in terms of seniority, with only four other aides with less seniority.

After the employer's staffing reduction was announced, the employee requested to take a voluntary layoff in lieu of a less senior aide worker. The employer agreed on May 23, 2006 (week 21). On June 13, 2006 (week 24), the employee's agent provided a letter of understanding to the employer regarding the situation.

Departmental records reflect that the employee initiated a claim for unemployment insurance benefits on June 15, 2006 (week 24). As of the date of the appeal tribunal hearing, August 14, 2006 (week 33), the employee secured new employment.

Wis. Stat. § 108.04(17)(d) provides as follows:

A school year employee of an educational institution who performs services other than in an instructional, research or principle administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during the period between two successive academic years or terms if the school year employee performed such services for any educational institution in the first such year or term and there is reasonable assurance that he or she will perform such services for any educational institution in the second such year or term.

Thus, the issue before the commission is whether the employee is eligible for benefits as of week 24 of 2006, in light of Wis. Stat. § 108.04(17)(d).

At the hearing, the employer's representative was uncertain whether the employee should be denied unemployment insurance benefits under the above "reasonable assurance" statute and presented limited firsthand evidence in this matter; its subsequent brief to the commission primarily asserted that the employer never agreed to her eligibility, but left the decision to the Department of Workforce Development.

The employee's representative argued, at the hearing, that the employee did not have reasonable assurance and should be eligible to receive benefits over the summer months. In its subsequent petition and briefs, it refined the argument, namely that the public policy behind the employee's acceptance of a lay-off in lieu of a less senior worker "required integration with Sec. 108.04(17)(d) such that the Claimant who accepts voluntary lay-off in lieu of another, assumes the benefit eligibility extended to the originally laid-off employee."  (3)  
 

School Year Employee

The first step in determining the employee's eligibility within Wis. Stat. § 108.04(17)(d) is to determine whether she was a "school year employee." Wis. Stat. § 108.02(22m) provides that a

"School year employee" means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require performance of services on a year-round basis.

The employee's services were performed as a "school year employee," within the meaning of the above; she was employed by and her services were on behalf of an educational institution, and the services were not performed on a year-round basis.

Next, in this case, whether reasonable assurance exists is a two-part analysis: the nature of the "assurance" and whether the "assurance" is for "such services."  
 

Reasonable Assurance

Reasonable assurance does not require a specific contract or guarantee of work; it may be established by custom. The legislature "has also determined that some degree of uncertainty is either necessary or acceptable, as long as it is reasonable." Ashleson v. LIRC, 216 Wis. 2d 23, 39 (Ct. App. 1997). Reasonable assurance is "assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance in making decisions related to employment and income." Bruce A Brookman, et. al. v. Milwaukee Public Schools, UI Dec. Hearing No. 89602703MWG (LIRC, May 9, 1990).

The administrative law judge and adjudicator found that the employer provided the employee with reasonable assurance and that the employee's decision to opt for a layoff in lieu of another worker was not effective until August 29, 2006 (week 35), thus resulting in a denial of benefits for weeks 24 through 35 of 2006. On first glance, this analysis comports with the department's policy as set forth in the Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, page 30, which provides, in relevant part:

The reasonable assurance section applies to the person who refused continued employment (similar work) in the next academic year or term even though the employment relationship ceases to exist. Although the employee may requalify or may be given good cause for quitting, benefits based on the employment with a school year employer cannot be paid until the start of the next academic year or term.

Yet, the Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, at page 31 also provides that

An employee who is not offered a contract for the following academic year/term because of a reduced need for school year employees has been laid off and there is no [reasonable assurance] issue.

The Department's distinction between the "effective date" of a quitting and a discharge as it relates to reasonable assurance appears to stem from the Unemployment Insurance Program Letter No. 4-87 (UIPL 4-87), dated December 24, 1986, which sought to provide guidance to State agencies on the interpretation of "reasonable assurance" related to Section 3304(a)(6)(A) of the Federal Unemployment Tax Act (FUTA). In particular, the interpretative example found on page 4 of the UIPL provides:

A principal refuses a contract for the second academic year as a teacher; the school offers no other employment. The State agency determines that the economic terms and conditions are substantially the same as in the first academic year. Therefore, reasonable assurance exists.

More relevant to the factual situation at hand is Part 4a of the Interpretation Section of UIPL 4-87, which provides, in relevant part, that:

There must be a bona fide offer of employment in the second academic period in order for a reasonable assurance to exist. . .

The employer originally made a bona fide offer of employment for the 2006-2007 school year. However, on May 23, 2006 (week 21), when the employer chose to allow the employee to accept the layoff in lieu of a less senior worker, it withdrew its reasonable assurance to her for the 2006-2007 school year. Thereafter, the employer did not provide the employee with new assurance for the 2006-2007 school year. See Kinlow v. Milwaukee Public School, UI Dec. Hearing No. 02600543MW (LIRC August 23, 2003), (the commission held that an employee's quitting nullified the reasonable assurance issue unless the school employer "affirmatively sought out the employee and provided her with new assurance regarding the school term after the winter holiday break").  
 

Reasonably Similar; Such Services

Next, in Leissring v. DILHR, 115 Wis. 2d 475 (1983), the Wisconsin Supreme Court held that the terms and conditions of the employment for the following year must be reasonably similar to those in the preceding year. The standard set forth in Wis. Admin. Code § DWD 132.04(2) is to treat the terms and conditions of the work as reasonably similar if:

(a) The gross weekly wage is more than 80% of the gross weekly wage earned in the academic year or term which preceded the weeks of unemployment;

(b) The number of hours per week is more than 80% of the average number of hours worked per week in the academic year or term which preceded the weeks of unemployment; and

(c) The employment involves substantially the same skill level and knowledge as the employment in the academic year or term which preceded the weeks of unemployment.

In this case, the employer failed to present any evidence that the remaining aide positions, for which the employee would be eligible through bumping, were similar within the meaning of the above; no evidence was presented to establish the hours per week that were allocated to the positions and no position descriptions were offered to establish that the remaining aide positions involved substantially the same skill level and knowledge as the employee's library aide position for the 2005-2006 school year.

The Commission therefore finds that the employee performed services in other than an instructional, research, or principal administrative capacity for the employer, the Royall School District, during the 2005-2006 academic year or term, but that during weeks 24 through 35 of 2006, she did not have reasonable assurance of performing such services in the next academic year or term within the meaning of Wis. Stat. § 108.04(17)(d).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 24 of 2006, if otherwise qualified.

Dated and mailed December 8, 2006
gehripa . urr : 150 : 4  ET 481

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding his impression of witness credibility and demeanor because the commission's reversal is based upon a differing legal conclusion.

cc:
Coulee Region United Educators
Attorney Fred Hollenbeck
Attorney Michael D. Phillips



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Footnotes:

(1)( Back ) The 2006-2007 school year began on August 29, 2006 (week 35).

(2)( Back ) Exhibit 1 listed various titled aide positions. The duties of each title were not defined at the hearing and, while position descriptions were referenced in Exhibit 1, none were offered or received.

(3)( Back ) While the ALJ referenced the quitting exception found at Wis. Stat. §108.04(7)(am), the application of that exception applies to the issue of the employee's eligibility for unemployment insurance benefits based upon the nature of the separation of employment, a separate issue from the reasonable assurance issue in this case. Thus, while the circumstances surrounding the period between the academic years or terms is relevant to reaching a decision on reasonable assurance, the actual application of Wis. Stat. §108.04(7)(am) is not. As a note, departmental records reflect that the separation of employment is currently categorized as a layoff.

 


uploaded 2006/12/15