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

MARY E. LAVIN , Employee

MADISON METROPOLITAN SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing Nos. 07003314MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued two decisions in these matters.

The decision for hearing number 074003314MD, held that the employee performed services in other than an instructional, research, or principal administrative capacity for an educational institution during an academic year or term, and that during weeks 24 through 35 of 2007, the employee had reasonable assurance of performing such services in the next academic year or term, and

The decision for hearing number 074003315MD, held that the employee performed services in an instructional, research, or principal administrative capacity for an educational institution during an academic year or term, and that during weeks 24 through 35 of 2007, she had reasonable assurance of performing such services in the next academic year or term.

The matters were timely petitioned and briefed. 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 has worked for four school years for the employer, a public school district. She performs work in two separate capacities for the employer. First, the employee is licensed to perform substitute teaching services for the employer; within her teaching license, she is certified to teach first through sixth grade. The employee also performs services as a substitute special education assistant (SEA) for the employer. As a substitute SEA, the employee works "one on one" with a disabled child in a smaller classroom setting, assisting the teacher. The employee's teaching license is an above average qualification for the SEA position.

From September 14, 2006 to November 16, 2006, the employee performed short-term substitute teaching or SEA assignments for the employer. Short-term assignments are those lasting less than seven consecutive school days. As of November 17, 2006, she was placed in a long-term SEA position through the end of the 2006/2007 academic year. The employee's long-term SEA assignment constituted 75 percent of her SEA work for the 2006/2007 academic year. Her last day of work for the employer for the 2006/2007 academic year was June 15, 2007 (week 24).

Departmental records reflect that on or about July 1, 2007 (week 27), the employee initiated a claim for unemployment insurance benefits. She filed weekly claims for benefits for the remainder of the summer recess, the calendar weeks ending July 7 through September 1, 2007 (weeks 27 - 35).

Because the employee is a licensed teacher on the substitute teaching list, she receives her contracted teacher's rate of pay for both the substitute teaching and the SEA assignments, approximately $134 per day for the short-term assignments and $170 per day for long-term assignments.

The employer has approximately 2,700 teachers and strives to maintain a substitute call list of 800 substitutes; it caps the amount of substitutes at 800 in order to ensure that it maintains similar ratios from year to year. In the 2005/2006 academic year, the employer had 800 substitutes on its call list. For the 2006/2007 academic year, 750 substitutes were named. For the 2007/2008 academic year, the employer had only 480 substitutes on its list but it was seeking to hire 200 more to bring the total on the list to 680.

The employer uses an automated placement system for securing substitute teachers for openings. Substitutes certified for the topic of the vacant position are called upon first by order of seniority. If no such substitute is available, seniority is used to call upon other substitutes who are willing to teach in that position. Based upon the employee's seniority, she has been, and continues to be, in the top third of the substitute list.

A teaching license is not required for SEA positions as they are not considered "instructional" in nature. Yet, SEA's are required to have two years of post high school education and a high school diploma. The employer is consistently short of workers to fill its SEA needs. It pays for the SEA license and constantly advertises in an attempt to fill the positions.

The employer employs approximately 500 SEAs and needs to maintain a substitute SEA list with 80 names to meet its needs. In the 2005/2006 academic year, the employer had 30 substitute SEAs on its call list. At the end of the 2006/2007 academic year, the employer had 23 substitute SEAs on the list. For the 2007/2008 academic year, the employer had only 18 names as willing to be on the substitute SEA list. Even though the employer has some substitute teachers, like the employee, who are willing to take substitute SEA assignments, the employer does not have enough substitute teachers on the list to meet its needs and sometimes fails to fill the SEA openings.

Additionally, although 18 substitute SEAs and 8 regular SEAs had been given notice of layoff on August 10, 2007 (week 32), the employer argued that the layoff situation would not affect the employee's opportunity to work as a substitute SEA because of the high number of SEA positions relative to those on layoff. More importantly, the employer argued that it anticipated an increased need for SEA positions once school started and those laid off will be recalled with allocation for more positions. In particular, money is allocated for position hires after the student count is completed, the third Friday in September, and the employer has historically always recalled these workers.

When filling the SEA openings, the employer first uses the "non teacher" SEA list. If it is unable to employ a SEA substitute, it goes to the list of substitute teachers that are willing to work in SEA positions. The employer does not choose the substitute teachers for SEA work by seniority. Since the employee is experienced in aide type work, she may be requested by a school with a vacancy. The employee has also made it known to the employer and individual schools that she is interested in such positions, including those of a long-term capacity.

As in previous years, the employer wrote the employee a thank you note for her services at the end of the 2006/2007 school year. Included with the note, was a form for the employee to return to the employer if she wished to remain on the substitute list. The employee, as she had done in past years, indicated that she wished to remain both on the substitute teacher and the substitute SEA lists.

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 25 through 35, the period between the 2006/2007 and the 2007/2008 academic years; specifically whether the employee may use school year employment wages within her base period to compute unemployment insurance benefits available during the summer recess between the 2006/2007 and the 2007/2008 academic years.

Based upon the initiation of the employee's benefit claim, her base period contains school year employment wages, necessitating a finding related to the above statutory provisions. See Torrey Jr. v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC, April 27, 2007).  
 

Capacity

The reasonable assurance provisions are divided into separate categories depending upon the type of employer and the type of or "capacity" of employment. These have always been treated as separate categories and assurance for one category does not constitute reasonable assurance for another. Towards that end, departmental policy specifically calls for split decisions for computational purposes in such cases; a split decision allows for a portion of the base period wages to be used. See, Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, Subsection VII C (updated August 30, 2007).

Wis. Stat. § 108.04(17)(a)1 applies to instructional, research or principal administrative services performed for an educational institution between academic years, while Wis. Stat. § 108.04(17)(d) applies to services in "other than an instructional, research or principal administrative capacity." The commission has followed the Departmental policy of determining the capacity based upon the services involved, not necessarily the job title. See, Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B Subsection III B (updated August 30, 2007); teachers and substitute teachers are in the instructional, research or principal administrative capacity, while teacher aides are in the "other than" an instructional, research or principal administrative capacity.

In this case, the claimant's substitute teaching is subject to Wis. Stat. § 108.04(17)(a)1 while the substitute SEA work including the long-term SEA position is subject to Wis. Stat. § 108.04(17)(d).  
 

Reasonable Assurance in General

In Leissring v. DILHR, 115 Wis. 2d 475 (1983), the Wisconsin Supreme Court held that the terms and conditions of the employment for the following year must be reasonably similar to those in the preceding year. The reasonably similar requirement applies to substitute teachers as well as full-time and part-time teachers. DILHR v. LIRC and Smithson, 155 Wis. 2d. 256 (Wis. Ct. App. 1990). The Leissring analysis has been applied to services performed in "other than an instructional, research or principal administrative capacity." Schultz v. Madison Metropolitan School District, UI Dec. Hearing No. 96003163MD (LIRC, March 14, 1997) (services provided as an educational assistant). Reasonable assurance is "assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance in making decisions related to employment and income." Bruce A Brookman, et. al. v. Milwaukee Public Schools, UI Dec. Hearing No. 89602703MWG (LIRC, May 9, 1990). 
 

Hearing No. 07003315MD; Reasonable Assurance in the Capacity of a Substitute teacher

Wisconsin Stat. § 108.04(17)(a)1 provides,

(17) EDUCATIONAL EMPLOYEES. (a) A school year employee of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:

1. During the period between 2 successive academic years or terms, if the school year employee performed such services for an educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term.

To establish reasonable assurance for only short-term substitute teaching, the commission holds it is an employer's burden to present evidence that the employee's opportunity to work in the upcoming school year would be similar to the opportunity the employee had in the prior academic year or term; such evidence includes the number of substitutes the employer anticipates needing, how many substitutes it had to select from, how substitutes are selected (seniority, teacher preference, subject matter), and the ratio of teachers to substitutes, as compared to the prior year. Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC, September 3, 1999).

The employer provided extensive evidence regarding its substitute teaching lists before and after the break. While the employee argued that the administrative/training days that teachers are allowed off has been reduced, she did not have specifics of how it would actually impact her likelihood of being called as a substitute. In fact, with the decreasing number of substitutes on the list, even with the plans to hire substitutes for the list, the employee's odds of being called for work are increasing i.e. her seniority within the pool is increasing.

Additionally, the employee argued that reasonable assurance should not be found because her substitute assignments in the month of September were decreasing. Yet, the period of comparison for determining reasonable assurance is the entire academic year preceding the break, not a month by month comparison. See Bird et. al. v. Madison Area Technical College District, UI Dec. Hearing No. 03004683MDG (LIRC, March 2, 2004) and Jodie L. Fetzer v. West Bend Joint School Dist., UI Dec. Hearing No. 93605520WB (LIRC, Feb. 17, 1994).

Certainly, with budget and enrollment issues not finalized until the third Friday in September, it is understandable that the availability of substitute assignments might be limited. However over the course of the academic year, and given the evidence that the employee's opportunity on the substitute has improved from the prior academic year, the commission find that the employer established that the employee's "opportunity to work" as a substitute teacher after the break was similar to that before the break.  
 

Hearing No. 07003314MD; Reasonable Assurance in the Capacity of a Substitute SEA

Wis. Stat. § 108.04(17)(d) 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 commission acknowledges the lack of cases dealing with the above statutory provision involving a worker who has both long-term and short-term substitute work in a capacity "other than in an instructional, research or principal administrative capacity." Further, while the petitioner desires the commission to use a variation of the 80 percent standard set by Wis. Admin. Code § DWD 132.04(1) to the claimant's circumstances, the scope of this administrative code provision is limited to Wis. Stat. § 108.04 (17) (a), (b) and (c), services performed in an instructional, research or principal administrative capacity, not the aide work at issue here. Nevertheless, the commission believes the reasonable assurance standards derived from cases involving substitute teaching in long-term and short-term positions provide guidance for determining whether the employee's continuing placement on the SEA list of substitute teachers willing to fill substitute SEA vacancies constitutes reasonable assurance.

The petitioner argues that a "no reasonable assurance" finding is required given the fact that over 75 percent of the employee's substitute SEA work was in a long-term assignment and that she was only assured placement on the substitute aide list with no actual guarantee of long-term aide work. To support this argument, the petitioner's reply brief cites DILHR v. LIRC and Smithson, 155 Wis. 2d 256, 267 (Ct. App. 1990) and argues,

. . . the District ignored the Commission's holding in Fetzer: "if a long-term teaching assignment or assignments constitute less than 20 percent of the employee's total employment for the previous of 'first' academic year, on-call substitution or placement on a substitute teaching list for the subsequent or 'second' academic year constitutes reasonable assurance within the meaning of the law. In other words, if the long-term teaching assignment constituted more than 20 percent of the employee's total employment in the first year, then placement in the substitute pool for daily assignments in the second year does not constitute reasonable assurance.

In fact, the appeal tribunal decision also cites Fetzer in stating that the commission "has ruled that mere placement on an on-call substitute list is not reasonable assurance if 20% or more of a substitute teacher's qualifying work came from long-term assignments." Even in Hoelzel v. Little Chute Area School District, UI Dec. Hearing No. 99401684GB (LIRC, December 7, 1999) the commission referenced the lack of reasonable assurance of a long-term assignment when over 20 percent of the employee's substitute teaching the preceding academic year was long term in nature.

Yet, the commission has not adopted a bright line 20% rule and declines to do so in this case. Specifically, in Hoezel, the commission's initial analysis of the reasonable assurance issue addresses whether the employee was actually given any "assurance" of work; it found that she was not and that no prior history existed from which to draw such assurance. Next, although the Hoezel decision references Spingola v. Milwaukee Public School, Hearing No. 97605720MW (LIRC 3-12-98) (affirmed, Milwaukee County Circuit Court 11-20-98), Spingola provides that reasonable assurance will be found with placement on a substitute list if the long-term work consists of less than 20 percent of the total employment for that year; this is a reference that presumes 80% of the work will be met with placement on a list similar to that in the preceding academic year. It alone does not mean the converse is true. In fact, the Spingola case provided much more analysis than that summarized above. Specifically, in finding that the placement of the claimant's name on the employer's substitute list did not constitute reasonable assurance of 80% of her hours or wages where:

1. there was no guarantee of work for the first weeks,
2. the claimant would be called on a day-to-day basis,
3. the employer's witness "was not clear as to the availability of work or the likelihood of vacancy positions,"
4. no evidence was provided as to the criteria used by the school to determine which of the substitute teachers would be called, and finally,
5. no historical data was presented. Spingola.

Next, in Jodie L. Fetzer v. West Bend Joint School Dist., UI Dec. Hearing No. 93605520WB (LIRC Feb. 17, 1994), the commission stated that it was

persuaded that the holding in Smithson does not require that a long-term substitute teach assignment of any duration mandates that the employee receive an offer of long-term substitute teaching in the subsequent academic year before a finding of reasonable assurance can be made.

The commission added that if the long-term teaching assignment(s) constituted 20% or more of the employee's total employment, "assurance of long-term assignment(s) and/or placement on a substitute teaching list will not automatically constitute reasonable assurance of similar employment." The commission declined to adopt a precise formula to decide reasonable assurance in substitute teaching situations, instead opting for a case-by-case analysis because

the language of Leissring requires comparison of the long-term assignments in the preceding year with the length and nature of assignments offered or assured in the next semester to determine whether reasonably similar employment has indeed been assured. Fetzer.

Instead of a "bright line" test, findings should not be mandated by a precise formula but by a case by case analysis using the language of Leissring. See Fetzer, Leissring and Schultz. Analysis requires

(1) Comparison of wages, terms and conditions of employment. See DILHR v. LIRC, Lukens and School District of Superior, Douglas County Cir. Ct. Case No. 88-CV-567 and 88-CV-568, (1989) which affirmed the commission's finding of no reasonable assurance where an individual who was initially contracted as a long term sub was only offered placement on the substitute list for the following year. In part, the affirmance held that

Basing the test of whether an employee has been assured reasonably similar employment on job status or classification, without comparing wages, terms and conditions of employment contradicts the legislative purpose behind this area of unemployment compensation legislation, as interpreted under Leissring.

(2) A showing of "reasonably comparable demand." See Madison Metropolitan School District v. LIRC and Chere Kelley, Dane County Cir. Ct. Case No. 86-CV-1634, where the court affirmed a commission decision finding that the employer did not meet its burden to establish reasonable assurance in the case of a substitute teacher who in the school year before the break worked as a long term sub from December 12 to June 7 with a letter of assurance only assuring her position in the substitute pool. Specifically, the court explained that, "the District failed to make a showing of reasonably comparable demand from one year to the next."

The commission has carefully considered the evidence regarding the employee's substitute SEA work in the 2006/2007 academic year and the opportunity for her to work in the 2007/2008 academic year given the data regarding the SEA positions, the substitute SEA list and the substitute teacher SEA list. Important within this consideration is the size of the district involved; the 500 SEA positions create greater certainty of opportunity to work than that in a smaller school district. This fact, when combined with the credible and detailed evidence submitted by the employer, persuades the commission that the employee has reasonable assurance of similar work in the 2007/2008 academic year.

Finally, the commission wishes to note the existence of Wis. Stat. § 108.04(17)(k) which provides,

If benefits are reduced or denied to a school year employee who performed services other than in an instructional, research or principal administrative capacity under pars. (d) to (f), and the department later determines that the school year employee was not offered an opportunity to perform such services for an applicable employer under pars. (d) to (f) in the 2nd academic year or term, the department shall recompute the school year employee's base period wages under sub. (4) (a) and ss. 108.05 (1) and 108.06 (1) and shall make retroactive payment of benefits for each week of such reduction or denial if the school year employee:

1. Establishes a benefit year for the period for which retroactive payment is to be made, in the manner prescribed by rule of the department, if the school year employee has not established such a benefit year;

2. Files a claim under s. 108.08 for each week of reduction or denial in the manner prescribed by rule of the department; and

3. Was otherwise eligible to receive benefits for those weeks.

For hearing number 074003314MD, the commission finds that the employee performed services in other than an instructional, research, or principal administrative capacity for an educational institution during an academic year or term, and that during weeks 24 through 35 of 2007, she had reasonable assurance of performing such services in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(d).

For hearing number 074003315MD, the commission finds that the employee performed services in an instructional, research, or principal administrative capacity for an educational institution during an academic year or term, and that during weeks 24 through 35 of 2007, she had reasonable assurance of performing such services in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(a)1.

DECISION

The decisions of the administrative law judge are modified to conform to the above and, as modified, are affirmed. Accordingly, during weeks 24 through 35 of 2007, the employee is ineligible for benefits based upon any wages paid for work performed in either capacity for the employer.

Dated and mailed March 28, 2008
lavinma . urr : 150 :  ET 481

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

cc:
Attorney Linda Harfst
Attorney June Lubinewski Wilson


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