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

WILLIE GORDON, Employee

SUNSHINE CLEANERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08606078MW


O R D E R


Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the appeal tribunal decision in the above-referenced matter and remands the matter for a new hearing and decision by a different ALJ.

Dated and mailed January 20, 2009
gordowi . usd : 132 : 1   PC 735  SW 844

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission remands this matter because the record is insufficient to make a determination regarding whether, if an offer of work was made to the employee, the employee had good cause for refusing that offer. At a minimum, labor standards must be applied. The ALJ reasoned that the job was not substantially less favorable to the employee because "it was the same job that the employee would have accepted in March, but for his injuries."

First, the fact that an employee might have been willing in the past to accept a particular job with particular conditions does not establish that if the employee is offered that job later it is therefore not substantially less favorable to him. Labor standards must be applied to refusals of work and voluntarily terminations occurring within ten weeks of beginning work. In Brown v. Labor Finders, UI Dec. Hearing No. 06607509RC(LIRC March 30, 2007) the commission stated:

The ALJ found that . . . since [the employee] had worked for the employer for three months under the same conditions, it could not be held that the wages of work were substantially less favorable to the employee. The commission notes that there was previously, about 15 years ago, a provision that provided that work was not less favorable if an employer for whom the employee worked after the beginning of her base period offered the employee work paying at least the same hourly rate as the employee last earned with the employer. However, the Department of Labor notified the state that that provision was non-conforming and that provision was repealed. The ALJ's reasoning follows that old provision.

It therefore stands to reason that when an employee has not actually worked for the employer under such conditions, labor standards must be applied.

Second, the employee never testified that he would have accepted the job but for his injuries. The employee testified he was off from the job in March and told the employer he could not do it because he was under doctor's care.

There was no testimony regarding the basic conditions of the work offered such as the wages, number of hours, and arrangement of hours. The commission cannot even infer that the job had the same conditions as the employee's job prior to being injured because the record does not contain the wages, number of hours, or arrangement of hours that the employee had worked in the past as a cleaner for the employer. Further, the record does not indicate how long the employee worked for the employer.

Finally, the ALJ found that the offered work was to start on August 8, 2008. However, the parties did not testify as to when the work was to begin.



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uploaded 2009/02/03