SUSE R RIDDLE, Employee
HORTONVILLE AREA SCHOOL DISTRICT, Employer
SCHOOL DISTRICT OF WAUPACA, Employer
BRILLION PUBLIC SCHOOLS, Employer
UNIFIED SCHOOL DISTRICT OF DE PERE, Employer
FREEDOM AREA SCHOOL DISTRICT, Employer
REEDSVILLE PUBLIC SCHOOL, 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.
On August 22, 2008, the commission ordered an additional hearing for the purpose of obtaining additional evidence as to:
(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.
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.
Issue
The issue is whether the employee should be denied benefits for the summer recess between the 2007/2008 and the 2008/2009 academic years.
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.
Wisconsin Statute § 108.02(22m), provides as follows:
"School year employee" means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require the performance of services on a year-round basis.
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:
(1) on a per school basis, compare the post-break employment that has been "reasonably assured" with the pre-break assignments,
(2) analyze the employee's assurance as a whole or on a "composite" basis, (1) and
(3) if reasonable assurance is found on the composite, compare the total post-break employment that has been "reasonably assured" with the services that initially qualified the employee for benefit, namely the base period services. See Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991). (2)
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:
(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.
For the Schools Individually
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,
A school year employee works through the end of the academic year but refuses an offer of similar work for the next academic year has reasonable assurance during the between terms period. This includes a substitute teacher who refused to remain on the substitute list for the next academic year. Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, Subsection V (dated 08/30/07).
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.
Composite Analysis
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 |
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 |
10,379/13,954 = .74
.74 x 100 = 74%
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.
Wanish Comparison
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.
Dated and mailed October 16, 2008
riddlsu : 150 ET 481
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
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.
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