MIODRAG RAJKOVIC, Employee

MUKWONAGO AREA SCHOOL DISTRICT, Employer

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, except that it makes the following modification:

Replace "instructional" in the eighth paragraph under the "FINDINGS OF FACT AND CONCLUSIONS OF LAW" with "instructional capacity."

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits based upon school year employment in his base period in weeks 51 of 2006 through 1 of 2007, i.e. the school year employment wages will be removed from the monetary computation of benefits for those weeks.

Dated and mailed April 13, 2007
rajkomi . umd : 150 : 1  ET 481

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The employee petitioned the appeal tribunal decision. The petitioner is not disputing that he is a "school year employee" and agrees with the denial of benefits for week 52 of 2006, however he contends that he should be eligible for unemployment insurance benefits in weeks 51 of 2006 and 1 of 2007 because the holiday recess was only a portion of those weeks and, as such, neither week is a "week of unemployment" within the meaning of Wis. Stat. § 108.04(17)(g).

Since 1990, the commission has consistently used the interpretation of a "week of unemployment" as a week in which any unemployment occurs, not a week of total unemployment. The basis for this interpretation was explained in Boym, et al., v. Milwaukee Public School, UI Dec. Hearing No. 89606363MWG (LIRC August 9, 1990), in which the commission stated:

"Week of unemployment" has not been defined in Wisconsin unemployment compensation statutes, nor has the term been defined judicially. The term "employment," while subject to numerous statutory exceptions, means the performance of services for pay, pursuant to section 108.02(15), Wis. Stats. Section 108.02(27), Wis. Stats., defines "week" as a calendar week, starting Sunday and ending Saturday. However, section 108.02(20), Wis. Stats., provides that an employe is "partially unemployed" in any week for which he or she earns wages and is eligible for some benefits under section 108.05(3), Wis. Stats. Section 108.02(25), Wis. Stats., provides that an employe is "totally unemployed" in any week for which he or she earns no wages. It is thus clear that "unemployment" exists in a calendar week even if the period of unemployment is less than the entire calendar week. Therefore, "any week of unemployment" in the above-quoted statute means any calendar week in which some period of unemployment occurs during an academic recess.

For these reasons, the commission agrees with the ALJ that weeks 51 of 2006 and 1 of 2007 are "weeks of unemployment," and the reasonable assurance disqualification applies. In particular, before and after the break, the employee's services were the same and reasonable assurance exists in this comparison. Similarly, when compared with the base period, reasonable assurance also exists. See, Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991).

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uploaded 2007/04/16