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. 06607509RC


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 November 3, 2006 (week 44), the employer offered the employee her previous position as a general laborer earning $6.50 per hour. Although the employee indicated she would take the job, she ultimately did not appear at the client location and did not again work for the employer.

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 $8.64 per hour. Thus, the wage rate of the position offered, $6.50 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 44 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 44 of 2006, if she is otherwise qualified.

Dated and mailed March 30, 2007
brownk2 . 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 appear at the hearing and, since she had worked for the employer for three months under the same conditions, it could not be held that the wages of work were substantially less favorable to the employee. The commission notes that there was previously, about 15 years ago, a provision that provided that work was not less favorable if an employer for whom the employee worked after the beginning of her base period offered the employee work paying at least the same hourly rate as the employee last earned with the employer. However, the Department of Labor notified the state that that provision was non-conforming and that provision was repealed. The ALJ's reasoning follows that old provision.

Further, 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 v. Cornwell Personnel Associates, Ltd., (LIRC Feb. 25, 1991):

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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