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

ANTHONY L MARTIN, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08604528MW


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 performed teaching services for the Milwaukee Public Schools. He began performing those services in 2003. The employee previously performed services for the Milwaukee Public Schools as a regular teacher but lost his "certification." (1)

The Milwaukee Public Schools employs two types of substitute teachers, the "regular" substitutes who agree to work year round and the "on-call" substitute teachers who just work occasionally. Without the "certification," it appears that the employee is able to work after receiving special permission or a license granted by the employer. Testimony further suggested that, without a license, he is limited in each substitute position and is paid less than a certified teacher.

The employer offered a summary of the employee's work history, which was received as Exhibit 3. It reflects that the employee worked almost every day in the academic year for the past five years. The table below lists the number of "separate" substitute teaching assignments (2)  and the range in length of those assignments for the academic years listed below:

 Academic Year

 Number of Assignments

Range in Length of Assignments

2003/2004

4

20 to 110 days

2004/2005

21

1 to 59 days

2005/2006

1

188 days

2006/2007

51

1 to 91 days

2007/2008

3

24 to 91 days

The employer testified that it is always short staffed and thinks it will still be short staffed for the 2008-2009 academic year even though its substitute list is undergoing the following changes:
 

 

2007/2008
Academic Year

2008/2009
Academic Year

Number of Substitutes on the substitute list

 629

 697

Number of teaching positions

 5,439

 5007

The employee testified that for substitute positions, the employer hires certified teachers first, then retirees, and then goes to the substitute list of which the employee is a member. The employer countered that the employee moved a few places up on the substitute list to number 107 from number 112 and also testified that the employee works so much because he is highly desired by the principals and, also, the employee was not picky about what schools he teaches at. The employee agreed that he was willing to work in classrooms and schools that others rejected.

In prior years, the employee was sent a letter about remaining on the substitute list before the start of the summer recess. (3) This year, the employer changed management and a letter was not mailed until July 11, 2008 (week 28). The letter indicated that the employee's name would remain on the substitute teaching list but also provided the following:

If you have a substitute license and/or a regular teaching license that will expire on June 30, 2008, your license must be issued before the first day of employment of the upcoming school year. If you have a substitute permit that expires on June 30, 2008, we will be sending you an application for renewal by August 15, 2008. If you do not receive it, please come into room 124 at the central services for a copy. Your permit application for renewal must be submitted to the department of public instruction prior to the first day of employment of the upcoming school year. You will not be dispatched without an applied for or current license or permit as evidenced from the department of public instruction website.

The employer testified that the lack of certification would not affect the employee's placement and argued that, despite the late mailing of the letter, the employee had reasonable assurance based on past custom.

Departmental records reflect that the employee reopened a claim for unemployment insurance benefits on June 16, 2008 (week 25). His base period, for purposes of computing his benefits at that time was the second quarter of 2006 through the first quarter of 2007. Presuming that the academic year will also begin sometime in the last week of August, as it did for the 2007/2008 academic year, the summer recess period consists of weeks 25 through 35 of 2008.
 

Issue

The employee's services were performed as a school year employee in an instructional capacity. See Wis. Stat. § 108.02(22m). Thus, the commission must decide whether the reasonable assurance provisions require a denial of unemployment insurance benefits to the employee over the summer break 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.

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). 
 

Timing of the Letter as a factor in the Reasonable Assurance Analysis

It was the employer's custom was send the letter before the end of the academic year. As such, when the employer failed to send it, the employee lacked any reasonable assurance. The letter was mailed on Friday, July 11, 2009 (week 28) and, thus the commission must decide whether the letter was sufficient to satisfy the reasonable assurance standard contemplated by Wis. Stat. § 108.04(17)(a). 
 

Does Reasonable Assurance exist Post Letter?

The commission believes there are two components to this reasonable assurance analysis, namely:

1. Does the application/license status affect a RA finding?
2. If not, is the employee's placement on the substitute list sufficient given his consistent work in longer positions in the 2007/2008 academic year?

It appears from this letter that the employee had to fill out the application which he would not receive from the employer until August 15; the application had not been sent as of the date of the hearing in this matter, July 22, 2008.

While the employer argued that the application was a formality that did not impact reasonable assurance, the commission disagrees. Specifically, as of the date of the hearing, the letter had not been sent yet and there is reason to question the employer's "custom" given its failure to send the original reasonable assurance letter prior to the year end. Additionally, the claim that it was only a formality is undermined by the employer's decision to delay its availability to its substitute teachers until August 15, 2008 (week 33).

In addition to the concerns undermining reasonable assurance related to the application process, the facts regarding the employee's opportunity for work in the 2008/2009 academic year reflect less of an opportunity than he had in the 2007/2008 academic year; the number of substitute teachers was increased by almost 70 and over 400 teaching positions were reduced.

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, but that as of week 25 of 2008, the employee did not have reasonable assurance of performing such services again in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(a).

DECISION

The appeal tribunal decision is affirmed. Accordingly, the employee is eligible for benefits beginning in week 25 of 2008, if otherwise qualified.

Dated and mailed October 16, 2008
martian . urr : 150 : 1 ET 481

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision arguing that the employee had reasonable assurance. While the commission agrees with the administrative law judge's ultimate findings, it has rewritten the decision to address the petitioner's arguments as well as the basis for its decision.

 


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Footnotes:

(1)( Back ) The record is unclear as to when he was a "regular teacher," however based upon Exhibit 3, it appears that he worked the entire 2005/2006 academic year in one position for the employer.

(2)( Back ) For purposes of this summary, the information supplied by the employer listed a code for each position, if the employee was placed multiple times over the course of the academic year in the same position number it was counted as a separate assignment; consecutive days in the same position code were counted as one assignment.

(3)( Back ) Originally, the letters required workers to notify the employer if they wished to remain on the substitute list, however, beginning in 2005, that practice changed with employee's required to notify the employer if they wished their names to be removed from the list.

 


uploaded 2009/01/02