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

STEPHANIE M MARTIN, Employee

TOTAL PERSONNEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07200834EC


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

Beginning in 1999, the employee worked in various assignments for the employer, a temporary employment agency, during breaks from her college studies.

The issue is whether the employee received a bona fide offer of work from the employer, and, reasonably subsumed within this issue, when the employment relationship ended, whether the separation resulted from a quit or discharge, and whether the separation occurred under circumstances which would permit the payment of benefits.

The employee sustained a traumatic brain injury in 2000. As a result, she suffers from memory loss and dramatic mood swings.

During the last months of her employment, the employee worked in a first shift, general laborer assignment for a spring manufacturer.

The employee was notified by the employer on February 10, 2006, that the assignment had ended.

The employer's president phoned the employee on February 13, 2006, to offer her another assignment.

The employee was angry during this conversation because she believed that the spring manufacturer had ended her assignment due to the manifestations of her brain injury. The employee testified that, during this conversation, she told the employer's president that she "didn't like the way they were treating me because they were discriminating against me with my disability," and "since [the spring manufacturer] does not want me to go there or work for them any more, then I will not work for you."

The employee then hung up the phone.

The employer's president phoned the employee back. The employee did not answer the phone. The employer's president left a voice mail message. In this message, the employer's president told the employee to never hang up on her again, and she did not want the employee to work for the employer or to contact the employer again.

The record shows that the employment relationship was a continuing one until the employee and the employer's president spoke on Monday, February 13, 2006, the next business day after the end of the previous assignment.

The separation occurred when the employee stated to the employer, as the employer was attempting to offer her another assignment, that she "will not work" for the employer again. This was a quitting.

The employee did not show that this quitting was for good cause attributable to the employer or for any other exception to the quit disqualification. Although the employee formed the belief that the assignment had ended due to manifestations of her brain injury, she presented no proof to this effect. In fact, the employee ascribed her absence on February 9, which she believed had led to the end of the assignment, to food poisoning unrelated to her brain injury.

Given the conclusion that the separation was a quitting which did not satisfy any exception to the quit disqualification, it is not necessary to decide whether the employer made an offer of suitable work to the employee after the end of her assignment on February 10.

The commission notes in this regard, however, that the offer of a new assignment by a temporary employer during an ongoing employment relationship is not an offer of new work subject to labor standards requirements (Cornwell Personnel Associates, Ltd. v. LIRC and Robert E. Linde, 175 Wis. 2d 537 (Ct. App. 1993)), and that, even if the employee's actions had not been regarded as a quitting, they would have constituted a blocking, i.e., an effective refusal, of the employer's offer of work.

There is no indication in the record, or in department records, that the employer failed to provide correct and complete information during the department investigation.

The commission therefore concludes that, in week 7 of 2007, the employee quit her employment with the employer, but not with good cause attributable thereto or for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further concludes that no overpayment was created since the employee requalified as of the first week claimed (week 16 of 2007).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 7 of 2007, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred.

Dated and mailed September 6, 2007
martist . urr : 115 : 1   VL 1080.20

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


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