DAVID T ANDERSON, Employee

SEEK CAREER/STAFFING INC, Employer

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:

The employee worked during about three months for the employer, an operator of a staffing business. His last day of work was October 26, 2007 (week 43), when his last assignment ended.

The employee's last assignment had been as an order picker at an hourly rate of pay of $10. He was on the assignment for two weeks. After the assignment ended, he was given assurance that the employer would attempt to find a new assignment for him. On October 29, 2007 (week 44), the employer offered the employee an assignment at a factory doing light assembly work on the second shift at an hourly rate of pay of $9.00. The job was located approximately 19 miles from his home, and public transportation did not run during hours that allowed him to rely on that as a means to get to work for the shift in question. He did not have his own transportation and refused the work for that reason. On October 31, 2007 (week 44), he was contacted about a second production job but no definite offer was made. On November 1, 2007 (week 44), the employer offered the employee a third job as a machine operator. The work was to be performed on the third shift at an hourly rate of pay of $8.30. The job was located in the same vicinity as was the first job. He declined the offer for the same reason. In his labor market, approximately 67 percent of those employed in work similar to that of an assembler and machine operator work first shift. Workers in his labor market earning wages similar to the wages offered in both jobs customarily travel up to 10 miles to a job.

The issue presented is whether the employee terminated the work with the employer.

Wis. Stat. § 108.04(7)(a) provides that a worker who terminates his or her employment will have benefits suspended until four weeks have elapsed since the week of quitting and until wages of four times the applicable weekly benefit rate are earned in covered employment. The only exceptions are those stated in the law. A worker may quit by giving notice of quitting, or by word or manner of action which is inconsistent with a continuation of the employment relationship.

After the employee's assignment ended on October 26, he was offered work within only a few days. The employment relationship did not end, according to DWD 133, Wis. Admin. Code. His failure to accept the assignments offered was inconsistent with a continuation of the employment relationship and terminated the employment relationship effective in week 44 of 2007, the calendar week ending November 3.

The remaining issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits. Wis. Admin. Code § 133.02 (c) indicates that in a temporary help situation the employment relationship continues if the assignment offered by the employer meets the conditions under which the employee offered to work, including the type of work, rate of pay, days and hours of availability, distance willing to travel to work, and available modes of transportation, as set forth in the individual's written application for employment with the employer submitted prior to the first assignment, or as subsequently amended by mutual agreement. At the hearing the parties agreed that during this time period there was an agreement with the employee about the conditions of his employment, and he had indicated he would be willing to accept a wage of at least $8 per hour, on first second or third shift. The employee was willing to work weekends or 12-hour shifts if necessary. The employee indicated he wanted to stay in Ozaukee County and indicated that he had a car. The first assignment offered by the employer was within the parameters set by the employee. The employee explained at the hearing that originally he had transportation because his mother would drive him to work, but after his last assignment ended, he needed to rely upon public transportation. While the employee's change of circumstances is unfortunate, in this case the employee refused work that met all the criteria that he had requested. The commission has generally found that travel distance to the work site is not a condition of employment. See Johnson v. Total Personnel, Inc. UI Dec. 05202353EC (LIRC April 13, 2006). The commission notes that there may be situations in which travel distance is a condition of employment, for example, if the job involves driving to call upon customers. However, simple commuting is not a condition of employment, as under normal circumstances, and absent some type of residency requirement, the employer has no control over where the employee chooses to live.

The commission therefore concludes that, in week 44 of 2007, the employee quit his 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 finds that the employee was paid benefits for each of weeks 51 and 52 of 2007, and weeks 1 through 8 of 2008 and weeks 12 through 19 of 2008, amounting to a total of $3,852.00; for which he was not eligible and to which he was not entitled within the meaning of Wis. Stat. § 108.03 (1). The payment for week 51 of 2007, in the amount of $214.00 is the result of claimant error, because he did not initially report refusing work or quitting and pursuant to Wis. Stat. § 108.22 (8)(a), the employee is required to repay the sum of $214.00 to the Unemployment Reserve Fund.

In this case, benefits were paid to the employee for week 52 of 2007 and weeks 1 through 8 of 2008 and weeks 12 through 19 of 2008, amounting to a total of $3,638.00 because the ALJ erroneously concluded that travel distance to and from the assignment was a condition of employment, and the employee was paid benefits as a result of this erroneous legal conclusion. The commission therefore further finds that waiver of benefit recovery for those week is required under Wis. Stat. § 108.22 (8)(c), because the overpayment was the result of a departmental error, and the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 44 of 2007, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $214.00 to the Unemployment Reserve Fund. The employee is not required to repay the sum of $3,638.00 to the Unemployment Reserve Fund.

Dated and mailed May 30, 2008
anderda . urr : 145 : 1 SW 810.15  VL 1025

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision, but reversed the ALJ's decision as a matter of law.

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