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

SUSE R. RIDDLE, Employee

HORTONVILLE AREA SCHOOL
DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08401673AP


ORDER


Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings.

Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission orders the taking of additional evidence, before an administrative law judge acting on behalf of the commission on the merits of the case. Specifically, the remand is to solicit evidence regarding:

(1) whether the employee performed services in the 2007-2008 school year for other school districts and the nature of those services,
(2) whether at the end of the 2007-2008 academic year she had assurance from any other school districts for the 2008-2009 school year and the nature of the assurance, and
(3) the nature and details of any school year employment in her base period.


Dated and mailed August 22, 2008
riddlsu : 150 ET 481

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Memorandum Opinion

The employee most recently worked in the 2007-2008 school year for the Hortonville School District as an on-call substitute teacher.

The issue is whether the employee should be denied benefits for the summer recess between the 2007-2008 and the 2008-2009 academic years.

The employee testified that, prior to the end of the 2007-2008 academic year, she asked to have her name removed from the substitute list for the 2008-2009 academic year. She also testified that in the 2006-2007 school year she was a part-time school teacher for the School District of Hortonville. Wisconsin Stat. § 108.04(17)(a) 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.

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 well as full-time and part-time teachers. DILHR v. LIRC and Smithson, 155 Wis. 2d. 256 (Wis. Ct. App. 1990).

The administrative law judge found reasonable assurance based upon departmental policy that, if a worker asks to have his or her name removed from a list or quits employment prior to the start of the next academic year, they are denied for the between terms period. While the ALJ's reference to this policy is correct, the purpose of the remand is to determine whether the substitute list services for 2008-2009 were sufficient to be reasonable assurance of "such services." Specifically, in Kelly v. Westby Area Schools, Kickapoo Area School District, Richland School District and Viroqua Area School District, UI Dec. Hearing Nos. 04003695LX, 04003696LX, 04003697LX and 04003698LX (LIRC February 25, 2005), the commission referenced the composite approach in attempting to resolve the reasonable assurance issues involved in an employment situation involving multiple school districts. The composite approach involves not only looking at reasonable assurance on an individual school level but also the effect of the reasonable assurance, or lack thereof, on the "total employment" picture. Also, in Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991), "such services" was interpreted as the services that initially qualified the employee for benefits, specifically, the base period services and the commission has consistently taken the approach that that the Wanish Court's analysis of the meaning of "such services" applies to all parallel statutory provisions using the "such services" language.(1)



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Footnotes:

(1)( Back ) See Rein Steingrabe v. Hustisford School District, UI Dec. Hearing No. 05600905WB (LIRC October 6, 2005), Rein Steingrabe v. Hustisford School District, UI Dec. Hearing No. 04611343WB (LIRC August 10, 2005); Weiler v. UW Madison, UI Dec. Hearing No. 05001829MD (LIRC July 15, 2005); Kelly v. Westby Area Schools, Kickapoo Area School District, Richland School District and Viroqua Area School District, UI Dec. Hearing Nos. 04003695LX, 04003696LX, 04003697LX and 04003698LX (LIRC February 25, 2005).