Wis.LIRC UC Decision: Riddle, Suse - October 16, 2008 - ET 481 - School year employee - school year employment - A school year employee who performed both short and long term substitute teaching work for multiple school districts was found not to have reasonable assurance of similar work in the following academic year; a mathematical comparison of the earning opportunities in a composite analysis supported the commission's conclusion of no reasonable assurance.

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.

On August 22, 2008, the commission ordered an additional hearing for the purpose of obtaining additional evidence as to:

The remand hearing was conducted on September 10, 2008. Following the remand the matter was returned to the commission. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJs at the original and remand hearings. Based on its review, the commission makes the following:

Department records reflect that the employee initiated a claim for unemployment insurance benefits on August 31, 2007 (week 35). She filed for and received total and partial unemployment insurance benefits over the 2007/2008 academic year. She filed an additional claim as of week 24 of 2008, the calendar week ending June 14, 2008.

The employee's base period, upon which her eligibility for unemployment insurance benefits was calculated, consisted of the second, third and fourth quarters of 2006 and the first quarter of 2007. For the 2006/2007 academic year, the employee performed services in a 50% contracted teaching position for the School District of Hortonville. For her services as a math teacher, she received a salary of $22,068 plus benefits.

In the 2007/2008 academic year, the employee performed services as a substitute teacher for six school districts: the Hortonville Area School District (Hortonville), the School District of Waupaca (Waupaca), the Brillion Public Schools (Brillion), the Unified School District of De Pere (De Pere), the Freedom Area School District (Freedom) and the Reedsville Public School (Reedsville).

For Hortonville, the employee performed services as an on-call substitute teacher. She was paid $80 per day and was called upon to teach for 22 full days and two half days. Although the claimant was offered a position on the Hortonville substitute teaching list for the 2008/2009 academic year, she declined. The employer anticipated increased demand for its substitutes in the 2008/2009 academic year when compared to the preceding academic year.

For Waupaca, The employee worked a long-term substitute teaching assignment from October 9, 2007 to January 3, 2008. Because the assignment was over 10 days in length, the employee was paid the contracted base rate of approximately $157.00 per day. For this assignment the employee was paid a total of $8,055.96. For short-term or day substitute teaching positions, the employer pays $80.00 per day. Prior to the end of the 2007/2008 academic year, the employee was sent notice that Waupaca would be placing her name on the substitute teaching list for the 2008/2009 academic year. The employer's business manager testified that there was no reasonable expectation that the employee would receive as much substitute teaching work from Waupaca in the 2008/2009 academic year as she had in the 2007/2008 academic year. The employer did not anticipate any long-term assignments for the 2008/2009 academic year and speculated that a frequently called substitute might be called upon for 60 days at the $80.00 rate.

For Brillion, the employee worked one day as a substitute teacher in the 2007/2008 academic year. She was paid $80.00 for that one day assignment. Although Brillion did not anticipate any changes in its substitute lists or needs, its bookkeeper and payroll clerk lacked firsthand knowledge as to whether the employee was actually mailed a letter from the district administrator assuring her of placement on the substitute list for the 2008/2009 academic year. The employee could not recall receiving any such notice.

For De Pere, the employee worked as a substitute teacher 26 days during the 2007/2008 academic year; she was paid $131.00 per day for a total gross income of $3,049.68. De Pere uses an automated system to secure substitute teachers on a daily basis. For the 2008/2009 academic year, De Pere anticipates a slight increase in its demand for substitute teachers. De Pere's human resource specialist testified that, in May or June 2008, the employer's substitute coordinator would have sent a letter to the substitute teachers asking them whether they wished to stay on the substitute teaching list for the 2008/2009 academic year. The employee affirmatively responded in September 2008. The employee testified that she has been substitute teaching for De Pere over 20 years.

For Freedom, the employee worked 3.5 days as a substitute teacher during the 2007/2008 academic year. For those services, she was paid $90 per day. On June 18, 2008 (week 25), the employee was sent a letter indicating that her name would remain on the Freedom substitute teacher list for the 2008/2009 academic year unless the employee asked to have it removed. The employee did not ask to have her name removed. Although Freedom anticipates using less substitute teachers in the 2008/2009 academic year, its business manager testified that Freedom anticipated providing the employee with at least 3.5 substitute teaching days in the 2008/2009 academic year.

For Reedsville, the employee worked 3 days as a substitute teacher during the 2007/2008 academic year. For those services, she was paid $90 per day. Although Reedsville anticipates the same demand for substitute teachers in the 2008/2009 academic year, Reedsville's district administrator was uncertain as to whether Reedsville had any established procedures for providing substitutes with any assurance of work.

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's services for the employers did not require the performance of services on a year-round basis. Accordingly, the employee is a "school year employee."

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).

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).

To resolve the issue of reasonable assurance given the employee's employment with multiple schools, the commission must:

Wis. Administrative Code § DWD 132.04(2) sets the following guidelines for determining whether work is reasonably similar; specifically, it provides that work is reasonably similar if:

It is an employer's burden to present evidence that the employee's opportunity to work in the upcoming school year would be similar to the opportunity the employee had in the prior academic year or term; for short-term substitute teaching positions such evidence includes the number of substitutes the employer anticipates needing, how many substitutes it had to select from, how substitutes are selected (seniority, teacher preference, subject matter), and the ratio of teachers to substitutes, as compared to the prior year. Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC, September 3, 1999).

Reedsville and Brillion failed to present firsthand evidence sufficient to establish that any assurance was provided to the employee regarding her opportunity to work in the 2008/2009 academic year.

Hortonville established that it offered the employee a continuing position on its substitute teaching list for the 2008/2009 academic year and anticipated its demand for substitute teachers to increase. The employee declined that position. Departmental policy provides that,

This departmental policy is consistent with the Unemployment Insurance Program Letter (UIPL) 04-87, dated December 24, 1986).3(3 ) Thus, the employee had reasonable assurance with Hortonville as an "on-call" substitute teacher.

Waupaca fails reasonable assurance individually; it does not anticipate any long-term work (which paid almost twice as much) and can only offer her placement on the short-term substitute list. As a note, Waupaca's assurance of short-term work will need to be considered in determining the employee's composite situation.

While the evidence from Freedom and De Pere is limited, the commission finds it sufficient to establish reasonable assurance of short-term substitute teaching.

In terms of the composite analysis and the guidelines set forth in the administrative code, given the nature of "on-call" substitute teaching work, the hours per week analysis is difficult to quantify, with the employee's income in her various substitute positions easier to quantify.

Further, while the employee may be required to teach various grades and subjects, there is no indication that the actual teaching work for which she is on the substitute lists requires a different skill level or knowledge level than that required of her services in the 2007/2008 academic year.

Under these circumstances, the commission believes that a calculation involving the income opportunities is helpful in determining whether reasonable assurance exists; yet the commission will not bind itself to "strict" guidance of the 80% cutoff. Towards this end, the chart below summarizes the opportunity to work in the 2008/2009 academic year and summarizes the employee's work for the 2007/2008 academic year.

For the chart below, the commission assumes the same income/opportunity to work in the next academic year for the "straight" reasonable assurance schools and the "best" short-term opportunity for Waupaca.

	Base Period	2007/2008 Academic year	Break	2008/2009 Academic Year	Reasonable Assurance and, if so, of what?
Hortonville	50% Math Teacher paid $22,068 plus benefits	On-call Substitute Teacher 22 full days 2 half days, $80 per day, $2,185		Declined placement on �On-Call� list	Reasonable Assurance of short-term substitute work Approximately the same opportunity to work ($2,185)
Waupaca	None	Long-term substitute assignment, October 9 to January 3, $157 per day, totaling $8,055		On list but no reason to believe another long-term assignment, may have up to 60 days at short-term rate of $80 per day	No Reasonable assurance individually but assurance of short-term substitute work for purposes of composite analysis. For short-term, the maximum opportunity for short-term work has an approximate income level of $4,800.
Brillion	None	1 day substitute teaching, $80 per day		No proof of Assurance that on substitute list	No Reasonable Assurance $0
De Pere	None	On-call Substitute Teacher 26 full days $131 per day, $3,049		Employee sent letter of assurance she did not return promptly	Reasonable Assurance of Substitute Teaching Approximately the same opportunity to work ($3,049).
Freedom	None	Substitute Teacher 3.5 days at $90 per day		On Substitute list	Reasonable Assurance of Substitute Teaching Approximately the same opportunity to work ($315).
Reedsville	None	Substitute Teacher 3 days at $90 per day		Unsure if any notice sent	No RA $0
Approximate Income for academic year	$22,068	$13,954			$10,379

The percentage falls below the 80% guideline amount. The commission finds that the mathematical result supports its own analysis of the chart above, namely, that the services for which the employee has received reasonable assurance in the 2008/2009 academic year are not reasonably similar to the services she performed in the 2007/2008 academic year.

Finally, if the commission were to apply the analysis set forth in Wanish and compare the post break work with the employee's base period work, the employee is in a position of no reasonable assurance; on-call substitute work (even for four districts simply does not constitute reasonable assurance from a permanent 50% position.

The commission therefore finds that the employee performed services in an instructional, research, or principal administrative capacity, for an educational institution during an academic year or term and that, as of week 24 of 2008, the employee did not have reasonable assurance of performing such services in the next academic year or term within the meaning of Wis. Stat. § 108.04(17)(a).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits based upon work performed as a school year employee. There is no overpayment as a result of this decision.

The commission did not confer with the administrative law judge prior to reversing the decision in this matter. The reversal is based upon additional evidence obtained at the remand hearing.

(1)( Back ) 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.

(3)( Back ) Example 5. a. of the UIPL provides, Refusal of a Contract in the Second Academic Year. (Principles 4.a. and 4.c.) A principal refuses a contract for the second academic year as a teacher; the school offers no other employment. The State agency determines that the economic terms and conditions are substantially the same as in the first academic year. Therefore, a reasonable assurance exists.