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

MARK D MAASSEN, Employee

VEDIOR NORTH AMERICA LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07005159MD


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 modifications:

The third sentence of the third paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is modified to read as follows:

He was not released from treatment to return to work until shortly before November 20, 2007, when he contacted the employer.

The fifth and following paragraphs of the FINDINGS OF FACT and CONCLUSIONS OF LAW section are deleted and the following substituted:

Based on the record, the employee did not in fact quit the employment in week 42 of 2007, but the employment was instead suspended by the employee due to his physical condition. The employee was again able and available for work on November 20, 2007 (week 47).

The employer discharged the employee in week 47 when it did not offer him an assignment or assure him that an assignment would soon be available.

As a result, in weeks 42 through 46 of 2007, the employee's employment was suspended by the employee because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1.

In week 47 of 2007, the employee was able to work and available for work on the general labor market, and did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7), but was discharged, but not for misconduct, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2007, if otherwise qualified.

Dated and mailed February 27, 2008
maassma . umd : 115 : 6  VL 1025

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee worked about ten weeks for the employer, a staffing agency.

On or around October 15, 2007 (week 42), the employee notified the client for whom he was performing services (Cummins) that he was entering inpatient treatment for a medical condition and would be unavailable for work for a period of time. The client passed this information on to the employer. The commission agrees with the administrative law judge (ALJ) that the record shows there was no separation on October 15, but instead the employment was suspended, within the meaning of Wis. Stat. § 108.04(1)(b)1., because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer; and the employee was not able/available for work again until November 20, 2007 (week 47).

The ALJ found that, when the employee contacted the employer during week 47, he "was informed that there was no work immediately available." This finding, however, is not consistent with either the employee's testimony or the employer's.

The employee testified he contacted the employer on or around November 24, said he was aware of a job fair going on, was told "not to bother showing up," and understood by this that there was no work available for him.

The employer's branch manager testified that she spoke to the employee after he had been released to return to work, she told him not to come to the job fair because it was an orientation for new applicants and he had already completed this orientation, and the employee became upset with her when she told him this, hung up on her, and she did not hear from him again. The branch manager also testified that, when she heard from the employee, she had planned to check with Cummins to see if his position was available, but apparently she did not do so after the employee hung up on her.

The employer did not appeal the ALJ's decision.

The employee, however, did file an appeal even though the ALJ's decision awarded benefits.

The employee's contention appears to be that he should also be eligible for benefits for weeks 42 through 46 of 2007 since he only missed work those weeks because he was "under a doctors care and orders."

There are two problems with the employee's contention.

First, he would only have been eligible for benefits for weeks 42 through 46 if the record showed that he was able and available for work during those weeks. The record, however, as the ALJ found, shows that the employee began treatment on October 15, and, according to the employee's testimony, he was not able to work again until his release from treatment around November 20, the day he initiated his claim for benefits.

In addition, Wis. Adm. Code § DWD 129.01(1) governs initiating a claim, and provides that a claimant is eligible for benefits for any week of unemployment only if, as of the first week being claimed, the claimant notifies the department during that week, or within 7 days after the close of that week, of the claimant's intent to initiate the claim.

Since the employee did not initiate his claim until November 20, even if he would have been able and available for work, this code provision would render him ineligible for benefits for any week prior to week 46.

As a result, the employee's contention in his petition is not meritorious.

However, a question, unresolved by the ALJ, remains as to the nature of the week 47 separation, and whether it occurred under circumstances which would permit the payment of benefits.

The record shows that the employer did no more than "plan" to contact Cummins once it found out that the employee was again able and available for work, and then suspended this plan once the employee hung up on the branch manager. The employer did not show that it offered work to the employee or assured the employee that work would soon be available, or even that it would have had work for the employee in week 47 or thereafter. See, Smith v. Cornwell Personnel Associates Ltd., UI Hearing No. 03608179MW (LIRC May 27, 2004)(in absence of offer of new assignment or credible assurance that offer would soon be forthcoming, employment relationship ended and separation a discharge); Pollich v. Bel Resource, Inc., UI Hearing No. 06606056MW (LIRC Jan. 18, 2007)(after end of 108.04(1)(b)1. suspension, failure of temporary help employer to offer claimant assignment or assurance that assignment would soon be forthcoming resulted in discharge). The employee did not block a job offer because the employer did not show it had a job to offer the employee. In addition, the record does not show that the employer should reasonably have interpreted the employee's words and actions as communicating that he was not interested in a job or would not accept an assignment if offered, but instead that he was upset by the employer's apparent rejection of his interest in a job.

These circumstances establish that the separation was a discharge, and the record does not show, nor does the employer appear to contend, that the employee engaged in misconduct.


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