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

JOAN M OEHLDRICH, Employee

SEEK CAREER STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08401991SH


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 21 of 2008, if she is otherwise qualified.

Dated and mailed October 16, 2008
oehldjo . usd : 132 : 1 VL 1007  VL 1025

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employee did not quit her work for the employer.

The commission has addressed the issue of whether an employee who begins working for a temporary help employer, and later transfers to employment with the client of the employer has quit. The commission's decisions rely on whether or not the employee had a choice to continue in the temporary help employment and whether the employee had been informed that she had such choice. In Vicki J Budd v. A Life Style Service, Inc., UC Hearing No. 96-400238AP (LIRC May 10, 1996), the commission found that the employee quit her employment where the employee acknowledged that she could have continued working for the employer by turning down the offer of permanent work. The commission reached a similar result in Kathleen Vanden Berg v. Trinity Resource Corp., UC Hearing No. 95-605562MW (LIRC Dec. 26, 1995). In Vanden Berg the commission noted that the employer was willing to continue the employee's employment if she had not been hired by the client and therefore it was the employee's decision to sever the employment relationship. On the other hand, in Vanessa R. Luster v. A Life Style Service, Inc., UC Hearing No. 96-604265MW (LIRC Sep. 20, 1996), the commission distinguished the cases of Budd and Vanden Berg by noting that in Luster it was understood at the time of hire the employee would be eventually hired by the employer. The commission further stated:

"Unlike the prior cases, the testimony in this case did not establish that the employer was willing to continue her employment if she declined to be hired on a permanent basis by the client. The employer did not indicate that the employee could have continued working for it. Further, even if it were found that the employee could have continued working for the employer, there was no testimony that the employee was aware that she had that option. This distinguishes the present case from the prior cases decided by the commission."

The employer points out that the handbook provides that it is the employee's choice to accept a position with a client and that an employee who accepts work with a client has quit. The ALJ found that the employee did not quit because the employer never advised the employee that she had the option of continuing to work for the employer. The ALJ asked the employee if she understood that she could have continued working for the employer. The employee indicated that she "probably" could have continued working for the employer. The ALJ asked the employee if she knew she could continue working for the employer and she responded, "No." Syn. at 6. The commission requires that the employee be aware that she has the option of continuing to work for the employer. The employer asserts that because the handbook states it is her choice the other option would be continuing to work for the employer. However, the other option could also be unemployment.



[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2008/11/17