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

ROBERT B. HIGGINS, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

 

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07604581MW


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 performed part-time services for the employer, the Milwaukee Public Schools (MPS). The employee performed various services for the employer throughout the calendar year. He provides the employer with dates that he is available and then, if the employer wishes him to work, it contacts him. He has been performing these services in this manner for over 25 years. No evidence of any type of written employment agreement was introduced. It appears that the employer paid the employee's wages under two separate classification numbers.

The parties referred to the employee's positions as a Municipal (Muni) Rec Sports Official and a Part-time Grounds Rec worker. One of the employee's duties for MPS is as a field attendant. As a field attendant, the employee prepares the baseball diamond for the adult recreation participants, unlocks the bathrooms, waits for the games to end and then take the bases down and locks up the field. The employee also performs officiating duties for the employer; specifically he officiates basketball, softball, baseball and volleyball, with the volleyball officiating at the middle school, high school and adult level.

The employer's witness explained that the "rec employee" classification work continued through the summer without regard to the school year; however, the employee's work as a "muni" corresponded with the school year.

Departmental records reflect that the employee initiated a claim for unemployment insurance benefits on April 9, 2007 (week 15). Based upon this initiation date, the employee's base period for purposes of computing his unemployment eligibility is the 2006 calendar year. Departmental records further reflect that the employee filed for benefits in weeks 14 through 18 of 2007 and then ceased filing temporarily. He reopened his claim for benefits on May 22, 2007 (week 21).

June 14, 2007 (week 24) was the last day of work for teachers on the employer's school calendar, while August 30, 2007 (week 35) was the first day back.

Issue

The issue before the commission is the applicability of Wis. Stat. § 108.04(17) to the employee's claim for unemployment insurance benefits for weeks 24 through 35, the period between the 2006/2007 and the 2007/2008 academic years.

Specifically, the reasonable assurance provisions require the removal of base period school year employment wages from a claimant's computation of benefits when the claimant's work satisfies the criteria set forth in Wis. Stat. § 108.04(17); conversely, all school year base period wages should remain in the computation for benefits if reasonable assurance does not exist. Sarah J. Corona v. Kenosha Public School and Racine Unified School District, UI Dec. Hearing Nos. 06605019RC and 06605020RC (LIRC, April 13, 2007).

The paragraphs of Wis. Stat. § 108.04(17) are divided by type of employer, type or capacity of employment and the period of unemployment involved. The nature of the employee's services are used to determine whether they are to be categorized as (1) in an instructional, research or principal administrative capacity, or (2) in other than an instructional, research or principal administrative capacity. Part III B of the Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, (dated April 23, 2007), provides the following positions and their respective duties fall within the instructional, research or principal administrative capacity:

Teachers/Professors
Substitute Teachers
Tutors
Educational Advisors & Counselors
Coaches

while duties included in the following positions fall within the "other than" an instructional, research or principal administrative capacity:

Teacher Aides
Custodians
Cafeteria Workers
Clerical Workers
Bus Drivers
Security Personnel
Scorekeeper
Referees/Umpires.

The employee's services for MPS fall within the "other than" category. In addition to the officiating which would equate with the position title of referee and umpire, his other services would fall within the security and custodial areas.

Thus, the commission focuses on Wis. Stat. § 108.04(17)(d) which provides:

A school year employee of an educational institution who performs services other than in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for any educational institution in the first such year or term and there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term.

The main point of contention between the parties in this matter was whether the employee was a "school year employee" within the meaning of Wis. Stat. § 108.02(22m).

The employee argued that his position was not "school year employment" for purposes of the reasonable assurance provisions while the employer argued that the employee's work should be divided with one aspect of his duties to be treated as "school year employment" and the base period wages from those duties removed for purposes of computing the employee's benefit entitlement during the summer recess.

Wis. Stat. § 108.02(22m) provides that a

"School year employee" means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require performance of services on a year-round basis.

In Ashleson et al. v. LIRC and CESA # 11, 216 Wis. 2d 23, 32; 573 N.W.2d 554 (Ct. App. 1997), the Wisconsin Supreme Court stated that the school year employee definition was "clear and unambiguous," requiring an employment contract that does not require performance of services year-round.

In Suprenand v. Moraine Park Vocational Technical & Adult Education District, UI Dec. Hearing No. 02000535FL (LIRC September 19, 2002), the commission found that an educational employee, who only worked 47 weeks annually, was "not a school year employee" because:

(1) her unemployment was not tied to any customary vacation or between terms period,
(2) she was not restricted to working during the school year, and
(3) she was not off work because of the employer's summer, holiday or other customary break period.

More recently in Wabnitz v. Oshkosh Public School, UI Dec. Hearing No. 03404679AP (LIRC July 20, 2004), the commission supported a no "school year employee" finding with the fact that:

(1) the employee's services were not tied to the school district in an educational capacity (i.e. the services of officiating of adult basketball and adult softball games were for the employer's adult recreation department) and
(2) those services were not tied "timing wise" to the school year.

Generally, it is the employer's burden to establish that reasonable assurance applies. Had the employer wished, it could have established and negotiated separate employment contracts with the employee for the different types of work to support removal of certain wages from the base period. It did not do so. All the employee's work for the employer is in a capacity "other than" an instructional one and there is no evidence that the employee treated any of the work as tied to the school year. In fact, the employee's work was throughout the year and his unemployment during the summer of 2007 was not due to the school recess but due to budget cuts and contaminated sites. Thus, without any other evidence, the mere fact that the employer classified the employee's pay under two separate categories does not justify treating some of the employee's work as school year employment; his employment was year round.

The commission therefore finds that the employee was not a "school year employee" within the meaning of Wis. Stat. § 108.22(22m) and, thus, the reasonable assurance provisions found at Wis. Stat. § 108.04(17)(d) do not apply to affect his eligibility for benefits.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the wages earned by the employee with the employer shall be included in the computation for benefits in weeks 24 through 35 of 2007.

Dated and mailed November 30, 2007
higgiro . urr : 150 : 8 ET 481

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM DECISION


The commission did not confer with the administrative law judge prior to reversing the decision in this matter. The reversal is not based upon a differing credibility assessment but based upon the commission's differing legal conclusion regarding whether the employee was a "school year employee."


 

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