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

KAYLA L BROWN, Employee

LABOR FINDERS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06607508RC


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 worked for a temporary help agency and her last day of work was September 1, 2006. She worked full time as a general laborer on first shift earning $6.50 per hour.

On September 13, 2006 (week 37), the employer offered the employee work as a production worker paying $7.00 per hour. The employee rejected the offer telling the employer that she had another job.

The issue to be decided is whether the employee had good cause for refusing the employer's offer of work.

Wis. Stat. § 108.04(9) provides that benefits cannot be denied for refusing to accept work if the wage, hours, or other conditions of that work are substantially less favorable to the employee than prevailing for similar work in the employee's locality.

A Conditions of Employment Data base report, received into the record without objection by the employer, concluded that for work offered the employee, and similar work, the substantially less favorable rate of pay was $8.25 per hour. Thus, the wage rate of the position offered, $7.00 per hour, was substantially less favorable to the employee than existed for similar work in her labor market.

The commission therefore finds that in week 37 of 2006, the employee failed to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a), but that the wages of that work were substantially less favorable to the employee than existed for similar work in her locality and that, pursuant to Wis. Stat. § 108.04(9), benefits shall not be denied.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 37 of 2006, if she is otherwise qualified.

Dated and mailed March 30, 2007
brownka . urr : 132 : 1 : SW 844  SW 875.05

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission has not reversed the ALJ based on credibility. The commission disagrees with the ALJ's legal analysis and conclusion of law.

The ALJ found that the employee failed to explain why she failed to accept the offer and, because it paid more in wages than she previously earned with the employer, it was not substantially less favorable to her. As the commission stated in Jackson v. Cornwell Personnel Associates, Ltd., (LIRC February 25, 1991):

The phrase "substantially less favorable" does not refer to the wages the individual had previously earned, however, but rather to the prevailing wage for the work in question. Only where "minor or purely technical differences are involved which would neither undermine existing labor standards nor have any appreciably adverse effect on the worker," may an employe be disqualified for refusal of, or in this case the termination of, work any conditions of which are non-prevailing. January 6, 1947 Program Letter No. 130 at 14. The program letter makes it clear that the phrase "substantially less favorable" addresses not prior work by the employe, but rather the fact that many of its conditions of work to which prevailing standards are applied, such as seniority and safety provisions, do not lend themselves to exact comparisons. Id . This interpretation by the Commission is consistent with that of virtually every court to have considered the matter. See, e.g., Allen-Bradley Co. v. DILHR, 58 Wis. 2d 1, 7, 205 N.W.2d 129 (1973). In Allen-Bradley, the court stated that the comparison required by 108.04 (9) is between the work refused and similar work in the locality. See also Konter v. Unemployment Compensation Board of Review, 76 N.E.2d 611 Ohio 1948) (the conditions of the work offered are not to be substantially less favorable than those prevailing for similar work in the locality) and In re Marsh's Claim, 196 N.E.2d 47 (N.Y. 1953) (since the statutory test is whether wage offered is substantially less favorable to claimant than prevailing wage for such work in the area, it "is of no legal significance" that the wage for the rejected employment was nearly as high as that which the claimant had previously been earning).

Finally, as to the ALJ's comment that the employee failed to appear at the hearing to indicate why she refused the offer, the commission noted in Jackson, supra:

The Department of Labor, finally, has also expressly indicated that the labor standards are mandatory, minimum standards and, as such, are applicable whether or not a claimant raises them. See January 6, 1947 Program Letter No. 130 at 2. For these reasons, it is irrelevant, that the employe did not assert labor standards as a reason for his quit of employment with the employer. Whatever reasons the employe did assert for his quit of employment are irrelevant for the same reason.

cc: Cheetah Staffing


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