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

REGINALD ALSTON, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08604493MW


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, during weeks 29 through 35 of 2008, the employee is ineligible for benefits based upon any wages paid for work performed for the employer.

Dated and mailed November 28, 2008
alstore . usd : 150 : 1  ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision arguing that he should be eligible for unemployment insurance benefits during the summer recess between the 2007/2008 and 2008/2009 academic years. He argued that he was not a salaried worker and should not be denied unemployment insurance benefits.

The record reflects that the employee performed services for the Milwaukee Public Schools as a certified substitute teacher. He has been performing these services since 2000. The employer offered records to establish that the employee works almost every school day for the employer and, based upon his certification, is in the "higher echelon" of substitutes, his group is called upon first and he typically is assigned to long term assignments.

The employer's witness testified that the employer 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
 
5,007
 

The substitute lists received as exhibits reflect that the employee's position has actually dropped a little; for the 2007/2008 list, the employee was number 283 of 629, for the 2008/2009, the employee is number 298 of 697.

In prior years, the employee was sent a letter about remaining on the substitute list before the start of the summer recess. (1)   This year, the employer changed management and a letter was not mailed until Friday, July 11, 2008 (week 28). The letter indicated that the employee's name would remain on the substitute teaching list and the employer anticipated that he would have the same opportunity to work for the employer (MPS) in the 2008-2009 academic year as he had in the 2007-2008 academic year.

Departmental records reflect that the employee reopened a claim for unemployment insurance benefits on June 16, 2008 (week 25).

A comparison of the employee's assigned work in the 2007/2008 academic year with his assigned work in the 2006/2007 academic year reflects similar assigned work with a small increase in that work for the 2007/2008 academic year.

The employee's services were performed as a school year employee in an instructional capacity. See Wis. Stat. § 108.02(22m). As such, the commission must determine whether Wisconsin Stat. § 108.04(17)(a) applies; it 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 does not require a specific contract or guarantee of work; it may be established by custom. The legislature "has also determined that some degree of uncertainty is either necessary or acceptable, as long as it is reasonable." Ashleson v. LIRC, 216 Wis. 2d 23, 39 (Ct. App. 1997). 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).

The commission finds that the employer's custom was to send the letter before the end of the academic year and, as such, given its failure this year, the employee could have no reasonable assurance until the week it was received, week 29 of 2008. See Martin v. Milwaukee Public School, UI Dec. Hearing no. 08604528MW (October 16, 2008).

Further, as of week 29, while the employee has dropped somewhat on the substitute list, the commission does not find that it is sufficient enough to find that "his opportunity to work" is not similar. He is a certified substitute and the employer's witness was credible that the employer desired the employee's services as a substitute teacher. Finally, the evidence in the record reflects that the employee had a similar position with the employer during his base periods (2),  so a Wanish comparison would not negate the reasonable assurance in this matter.

The appeal tribunal decision is therefore affirmed.



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Footnotes:

(1)( 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.

(2)( Back ) The employee changed base periods during the summer recess but departmental records reflect the employer as the only school year employment.

 


uploaded 2008/12/29