JANE L PETERSON, Employee
GLENDALE RIVER HILLS SCHOOL DISTRICT, 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:
In the 2007-2008 academic year, the employee performed services as a library paraprofessional, 24 hours per week for the employer, the Glendale River Hills School District. Her last day of work was June 13, 2008 (week 24).
Prior to the end of the 2007-2008 academic year, the employee was notified by email from the principal that she would have a job in the following academic year. Specifically, for the 2008-2009 academic year, the employer planned for the employee to return to the same position she held in the 2007-2008 academic year.
Previously, in the 2006-2007 academic year, the employee worked as a special education paraprofessional for the employer, 35 hours per week.
The employee filed for unemployment insurance benefits for the summer recess between the 2007-2008 and the 2008-2009 academic years, the calendar weeks ending June 14 through August 30, 2008 (weeks 24-35). She initiated her claim for unemployment insurance benefits on June 9, 2008 (week 24) and a new monetary computation was created with her base period consisting of the four calendar quarters of 2007.
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 issue before the commission is whether, in weeks 24 through 35 of 2008, the employee was a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(d).
A "school year employee" is an employee of an educational institution who performs services under an employment contract that does not require performance of services on a year round basis. Wis. Stat. § 108.02(22m). Given the fact that the employee's services are not required year round and are tied to the school year, the employee is a "school year employee."
Reasonable assurance does not require a specific contract or guarantee of work; it may be established by custom. The legislature "has also determined that some degree of uncertainty is either necessary or acceptable, as long as it is reasonable."
Ashleson v. LIRC, 216 Wis. 2d 23, 39 (Ct. App. 1997). 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).
In this case, the employee received an email indicating that the employer would employ her in the 2008-2009 academic year and budgeted her same position and number of hours. As such, the employee had reasonable assurance of similar work for the 2008-2009 academic year as she had for the 2007-2008 academic year.
In Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991), "such services" was also interpreted as the services that initially qualified the employee for benefits, namely, the base period services. Given this, the commission must also determine how the employee's services before and after the summer recess compares with her base period services.
The employee has reasonable assurance of a 24 hour per week paraprofessional library position with the employer. Her base period consists of the 2006-2007 and the 2007-2008 academic years. Again, in the 2006-2007 academic year the employee performed special education paraprofessional work for the employer in a 35 hour per week position.
In this case, the ALJ averaged the base period hours per week to compare with the post break rationalizing that in the base period, the employee had two quarters of the library paraprofessional work at 24 hours per week (the third and fourth quarters of 2007) and two quarters of the special education paraprofessional work at 30 hours per week (the first and second quarters of 2007). The commission agrees with this approach but notes that the record reflects that the special education paraprofessional work consisted of 35 hours per week.
While Wis. Administrative Code § DWD 132.04 (2) does not explicitly apply to Wis. Stat. § 108.04(17)(d),(1) the commission finds the 80% standard set forth therein and appropriate guideline to use in determining whether reasonable assurance exists. Additionally, in Gehri v. Royall School District, UI Dec. Hearing No. 06002736BO (LIRC December 8, 2006), the commission used the above provision in finding no reasonable assurance for an individual who performed services in an "other than" capacity. Wis. Administrative Code § DWD 132.04 (2) provides that the terms and conditions of employment are "reasonably similar if:"
(a) The gross weekly wage is more than 80% of the gross weekly wage earned in the academic year or term which preceded the weeks of unemployment;
(b) The number of hours per week is more than 80% of the average number of hours worked per week in the academic year or term which preceded the weeks of unemployment; and
(c) The employment involves substantially the same skill level and knowledge as the employment in the academic year or term which preceded the weeks of unemployment.
In terms of hours, when the employee's base period hours are averaged, the weekly hourly amount of the post break work constitutes 81% of the weekly hourly average of the base period work. Further, the employee testified that the wages were increasing slightly although the employee did state that her library paraprofessional work was "more clerical" than her special education paraprofessional position for the employer, she presented no other evidence to dispute that the services were similar in terms of skill level and knowledge. In fact, given that her seniority and rate of pay essentially remained the same from one position to the next, it is reasonable to conclude that these positions are in the "same category under contract."
The commission therefore 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 2008, 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).
The decision of the administrative law judge is amended as to weeks of issue and, as amended, is affirmed. Accordingly, during weeks 24 through 35 of 2008, the employee is ineligible for benefits based upon wages paid for work performed as a school year employee.
Dated and mailed September 9, 2008
peterja : 150 ET 481
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]
uploaded 2008/09/26