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


VIRGIA L PAYNE, Employe

CORNWELL PERSONNEL ASSOCIATES LTD, Employer 

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603116MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for a temporary help agency beginning on March 18, 1998 (week 12). The employe completed her first assignment which lasted from March 12 through March 26 (week 13). That assignment ended and the employe then accepted work which began on April 2. The employe worked through April 10, 1998 (week 15). The employe was scheduled to continue on that assignment on Monday, April 13, 1998 (week 16). The employe failed to appear at the employer's van stop and failed to call the employer in a timely fashion regarding her absence. As a result, the employer considered the employe to have voluntarily terminated her employment.

The employe was absent on Monday, April 13, 1998 because she missed the employer's van to take her to the assignment. The employe missed the employer's van because she was at her aunt's house the night before preparing for her uncle's funeral. Because the employe missed the van she considered it unnecessary to call the temporary help agency until later in the day, approximately 2:30 p.m. The employe failed to return to the employer thereafter. Under the terms of the employment agreement that the employe and employer had, the employer considered the employe's absence to be a voluntary termination by the employe.

The ALJ agreed and found that the employe's conduct was inconsistent with the continuation of the employment relationship and that she voluntarily terminated the employment relationship. The commission agrees with the ALJ's conclusion that the employe voluntarily terminated her employment relationship.

The next issue therefore is whether the employe's quitting was for any reason constituting an exception to the quit/disqualification found in Wis. Stat. § 108.04(7)(a). The ALJ found that the employe accepted work in week 14 of 1998, that could have been refused because the wages, hours (including arrangement and number), or other conditions of the work were substantially less favorable to the employe than those prevailing for similar work in the locality, and that the employe voluntarily terminated that work in week 16 of 1998, within ten weeks after starting work, within the meaning of Wis. Stat. § 108.04(7)(e).

The commission reverses the ALJ's legal conclusion as a matter of law. The application of Wis. Stat. § 108.04(7)(e) to second and subsequent assignments in a temporary help employment relationship, such as here, is inapplicable. See Cornwell Personnel Associates v. LIRC & Linde, 175 Wis. 2d 537 (Ct. App. 1993) (hereafter Linde).

In Linde, the court of appeals announced that second or subsequent assignments whether offered or accepted in a temporary help employment relationship do not constitute "new work" within the meaning of Wis. Stat. § 108.04(7)(e) and labor standards found in Wis. Stat. § 108.04(9) cannot be applied. Therefore, once an employe accepts an assignment which could have been refused under the labor standard provisions of Wis. Stat. § 108.04(9) and continues in that position until it ends (no matter how short the duration of the assignment is) Wis. Stat. § 108.04(7)(e) cannot be applied to any second or subsequent assignment unless there is an intervening layoff or a change in the original contract of hire in the employment relationship.

Here, there was no intervening layoff or change in the original contract of hire. Although the employe contends that she wanted only work close to her home, she accepted her first and second assignment outside the City of Milwaukee. Therefore, since the second assignment which the employe accepted could not have been refused within the meaning of Wis. Stat. § 108.04(7)(e), the commission reverses the appeal tribunal decision. (1)

The commission therefore finds that in week 16 of 1998, the employe terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason constituting an exception to that section.

The commission further finds that the employe was paid benefits in the amount of $816.00 for which she is not eligible and to which the employe is not entitled within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), the employe is required to repay such sum to the Unemployment Reserve Fund.

The final issue to be decided is whether recovery of overpaid benefits may be waived.

Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Pursuant to Wis. Stat. § 108.02(10e), "departmental error" is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, a miscalculation, misapplication or a misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department on which a claimant relied. The commission concludes that the overpayment in this case results from departmental error and not from the fault of the employe. The commission therefore waives the $816.00 overpayment stemming from the employe's claim for benefits in this case.

Both the department and the commission have applied the rule of law established in Linde since 1993. The commission believes that the ALJ either knew or should have known about the holding announced in Linde. Additionally, Keith P. Leighton v. Cornwell Personnel Associates, Ltd., (LIRC June 28, 1994) outlines the commission's understanding of Linde. The ALJ should also be familiar with the department's UCD 95-06 which discusses general principles of Linde and its application to temporary help employment relationships. Wis. Stat. § 108.04(7)(e) is inapplicable to second and subsequent job assignments with temporary help employment relationships unless there is either an intervening layoff or change in the original contract of hire. The commission therefore concludes that the ALJ committed departmental error when he failed to consider and apply the holding established in Linde. The commission is satisfied that had the ALJ applied this holding to the facts at hand the employe would not have been found to be eligible for benefits pursuant to Wis. Stat. § 108.04(7)(e), or any other statutory exception and, an overpayment would not have been created. However, an overpayment was created as a result of the ALJ's departmental error and through no fault of the employe. Consequently, the employe's overpayment is waived.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 16 of 1998, 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 four times her weekly benefit rate which would have been paid had the quitting not occurred. The $816.00 overpayment is waived and the employe does not have to repay such sum to the Unemployment Reserve Fund.

Dated and mailed: October 15, 1998
paynevi.urr : 135 : 1   BR 335.01 VL 1001 VL 1007.01 VL 1025

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission reverses the appeal tribunal decision as a matter of law. Wis. Stat. § 108.04(7)(e) is inapplicable to second and subsequent assignments offered/accepted in a temporary help employment relationship unless there is an intervening layoff or a change in the original contract of hire in the employment relationship. See Cornwell Personnel Associates v. LIRC & Linde, 170 Wis. 2d 573 (Ct. App,. 1993), hereafter (Linde). Here there was no intervening layoff or a change in the original contract of hire. The commission is satisfied that the ALJ committed a departmental error by failing to apply the holding of Linde to the facts found in the appeal tribunal decision. Consequently, the employe's overpayment stemming from the ALJ's decision is waived based on departmental error and the fact that she was paid benefits through no fault of her own.


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Footnotes:

(1)( Back ) The commission is aware that its interpretation of Wis. Stat. § 108.04(7)(e) may be inconsistent with the recent US Department of Labor Unemployment Insurance Program Letter 41-98 which indicates that subsequent assignments in a temporary help employment relationship are "new work" and labor standards should be applied. However, until the Wisconsin Legislature has changed the law to reflect this Federal intent, Linde remains in effect and the commission will continue to uphold the ruling pronounced by the Court of Appeals.