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

THERESA A KING, Employee

SITE STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08605120MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked during about one year as a general laborer for the employer, an operator of an employment agency business. Her last day of work was June 20, 2008 (week 25).

The employee's last assignment was at a bindery business. She had worked on an intermittent basis during the hours of the first shift at an hourly rate of pay of $7.00. Following the employee's last day, the employer informed the employee that she could be assured of new work within seven days. On Friday, June 27, 2008 (week 26), she reported to the employer's office at about 5:30 a.m. seeking a new assignment. She was informed that she could return to work at the bindery under the same conditions, including wages and hours. She accepted the assignment but asked to report on Monday, June 30, 2008 (week 27). Her request was granted and she was scheduled to report for work on Monday, June 30. She did not report to the assignment on Monday. In her labor market, 75 percent of those similarly situated earned at least $8.24.

The issue presented is whether the employee terminated her 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. Chapter DWD 133 provides in relevant part:

DWD 133.02 Employment relationship. (1) CONTINUATION OF EMPLOYMENT RELATIONSHIP. When an assignment ends, the employment relationship between an employer and an employee shall be considered a continuing relationship if all of the following conditions are met:

(a) Prior to the end of the second full business day after the end of the assignment, the employee contacts the employer, or the employer contacts the employee, and informs the other that the assignment has ended or will end on a certain date. The department may waive the requirement for the deadline or notice, or both, if it determines that the employee's failure to so contact the employer was for good cause and the employer and employee have otherwise acted in a manner consistent with the continuation of the employment relationship.

(b) Prior to the end of the second full business day after the end of the assignment, or prior to the end of the first full business day after the date notice was given under par. (a) if the deadline for the notice was waived, the employer informs the employee that the employer will provide a new assignment that will begin within 7 days and any of the following occur:

1. The employer provides a new assignment that begins within 7 days of the date of the notice.

2. A new assignment does not begin within the 7-day period specified in par. (b) (intro.), but within that same 7-day period, the employer notifies the employee that the start of the assignment will be delayed for a period not to exceed an additional 7 days. The delayed assignment begins within 7 days of the date that the employer notified the employee of the delay.

3. A new assignment does not begin within the 7-day period specified in par. (b) (intro.), but within that same 7-day period, the employer notifies the employee that the employer will provide another assignment that will begin within 7 days. This assignment begins within 7 days of the date that the employer notified the employee of the assignment.

(c) The assignment offered by the employer meets the conditions under which the individual 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. The employer shall have the burden of proof to show that the assignment meets the requirements of this paragraph. If the employer offers an assignment that does not conform to the requirements of this paragraph, the employment relationship ends under sub. (2).

(2) SEPARATION OF EMPLOYMENT BY EMPLOYER. If the employment relationship does not continue under sub. (1), the employment shall be considered separated by the employer unless the employee has voluntarily separated from the employment under sub. (3).

(3) SEPARATION OF EMPLOYMENT BY EMPLOYEE. (a) An employee voluntarily separates from the employment when any of the following occur:

1. The employee fails to notify the employer that an assignment has ended if the employer's policy requires the notification prescribed by sub. (1) (a) and the employee had notice of this policy prior to the end of the assignment, provided that the employer is not aware that the assignment has ended, and provided that the notice requirement was not waived under sub. (1) (a).

2. The employee refuses an assignment while the employment relationship continues.

3. The employee fails to respond to an offer of work by the employer within a reasonable time period, while the employment relationship continues.

4. The employer is unable to communicate an offer of work to the employee because of the employee's failure to provide the employer with his or her correct address, telephone number, or other contact information while the employment relationship continues.

(b) Nothing in this chapter shall preclude the application of other provisions of ch. 108, Stats., to determine whether the employee separated from the employment.

DWD 133.03 Treatment of time between assignments.

An employee shall be eligible for unemployment insurance benefits while the employment relationship continues between assignments pursuant to s. DWD 133.02 (1), if the employee is otherwise qualified for those benefits.

DWD 133.04 Relationship following termination.

When an employee's employment relationship with an employer terminates, his or her application for employment with that employer shall expire. If the employee returns to work for the employer, a new written application for employment shall be required for this chapter to be applicable. If the employee agrees in writing, the original application may be treated as a new application for employment.

When the employee's assignment ended the employer informed the employee that it would offer the employee work within seven days and in fact did so. The employee abandoned her job by failing to report for work on Monday, June 30, 2008, or to contact the employer thereafter. The employer offered the employee work at the same job she had been performing for the employer off and on in the past, from about April 13, 2008. There was no specific evidence adduced at the hearing concerning the contract of hire. However, the employee had been working at the client in the past and the commission infers that the assignment with the bindery was within the employee's original contract of hire. The employee did not appear at the hearing and present any evidence to suggest that she refused the assignment because it did not meet the conditions set forth in any contract of hire or mutual agreement between the employee and the employer. Further, even assuming that the evidence was insufficient to establish that Chapter 133 applied in this case, the employee would still have been employed by the employer and the job that she rejected would not have been an offer of new work. The employee had been given an assurance that work would be found for her within seven days and the employer did in fact make her such an offer.

The commission therefore finds that in week 27 of 2008, the employee was not discharged by the employer but quit her job, within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason that would allow immediate benefit payment.

The commission further finds that the employee was paid benefits in the amount of $124.00 per week for each of weeks 27 through 37 of 2008, amounting to a total of $1,364.00 for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1).

The commission further finds that waiver of benefit recovery 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).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 27 of 2008, 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 not required to repay the sum of $1,364.00 to the department.

Dated and mailed September 30, 2008
kingth . urr : 145 : 1 VL 1025

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse based on a different impression of witness credibility but rather, the commission reversed as a matter of law.

 

NOTE: Benefits paid to the employee prior to the commission's decision had been charged to the fund's balancing account.

 


 

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