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

CAROL H CALLAHAN, Employee

MADISON METROPOLITAN SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08003000MD


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 began working as a substitute teacher in February of 2002 for the employer, the Madison Metropolitan Public School District. In the 2003-2004 and 2004-2005 academic years, the employee performed contracted work for the employer; this was separate from the substitute teaching work. Thereafter, the employee resumed her substitute work for the employer.

In the 2006-2007 academic year, the employee worked 8.63 days as a short-term substitute for the employer. All of the claimant's services in 2006-2007 academic year were performed in the first semester. The employer did not know why the employee was not called for substitute work in the second semester.

In the 2007-2008 academic year, the employee mainly worked as a long-term substitute. Specifically, she worked as a full-time long-term substitute from September 4, 2007 through January 7, 2008. She worked one day as a short-term substitute on February 14, 2008. Thereafter she was assigned to a 40 percent long-term position, beginning on March 5, 2008 through June 13, 2008. The employer pays $142.56 per day for short-term substitutes and $172.32 per day for long-term substitutes.

The employer testified that it uses the sub-finder system. If a specific substitute is requested and that substitute is available, the employer places that particular substitute at the school. If this does not occur, sub-finder uses a three tier approach to filling openings. Within each tier, substitutes are chosen by seniority. The first tier is teachers who are regularly certified in that area of instruction. The second tier consists of substitutes who are certified for purposes of substitute teaching only. The final tier goes to permit substitutes.

The employee falls with the second tier, those substitutes certified for subbing purposes only. The employer testified that the employee had reasonable assurance because it only had seven Spanish certified substitutes in its first tier and the employee taught this as a substitute teacher for the employer.

Evidence establishes that at the beginning of the 2007-2008 academic year, the employer had 400 substitutes on its substitute list. At the time of the hearing, before the start of the 2008-2009 academic year, the employee had 420 substitutes on its substitute list. No specifics were offered as to:

- the number of substitute teachers on each tier,
- the employee's seniority within her tier,
- the total number of teaching positions before and after the break, or
- the number of Spanish teaching positions before and after the break.

- Departmental records reflect that on July 8, 2008 (week 28), the employee initiated a claim for unemployment insurance benefits. The only wages in her base period are her school year wages from the employer. She is seeking unemployment insurance benefits for the period between the 2007-2008 and the 2008-2009 academic years.

The issue before the commission is whether the employee is a school year employee who had reasonable assurance of performing similar work in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(a).

Wisconsin Stat. § 108.04(17)(a)1 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.

To establish reasonable assurance for only short-term substitute teaching, the commission holds 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; 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).

The employee petitioned the appeal tribunal decision agreeing that she was a "school year employee" but disputing the finding that she had reasonable assurance of such services in the 2008-2009 academic year. The employee's contention must be sustained. In Mary E. Lavin v. Madison Metropolitan School District, UI Dec. Hearing No. 07003314MD (LIRC March 28, 2008), the commission repeated its rejection of a bright line standard in determining whether a long-term substitute teaching assignment of any duration mandated that the employee receive an offer of long-term substitute teaching in the subsequent academic year before a finding of reasonable assurance could be made; instead, the commission used a case by case analysis, requiring a comparison of wages, terms and conditions of employment, and determination of whether a "reasonably comparable demand" exists.

In this case, almost all of the work the employee performed for the employer in the 2007-2008 academic year was in a long-term capacity, paying approximately $30 more per day. There was no assurance of continuing long term work or even short term opportunity at a comparable level. In particular, the employee only had one short term assignment in 2007-2008 and only 8.63 days in the preceding academic year. While the employer offered evidence as to the substitute list and the substitute finder system, it failed to present any evidence regarding the employee's seniority within her tier, the actual number of teachers employed in the academic year generally by the employer or number of positions requiring the Spanish certification. Under these circumstances, the employer failed to establish a comparable need and/or opportunity for the employee in the 2008/2009 academic year. See Kane v. Madison Metropolitan School District, UI Dec. Hearing No. 08002896MD (October 23, 2008).

The commission therefore finds that as of week 25 of 2008, the employee performed services in an instructional, research, or principal administrative capacity during the 2007-2008 academic year, but that as of week 25 of 2008 the employee did not have reasonable assurance of performing such services in the 2008-2009 academic year.

DECISION


The decision of the administrative law judge is reversed. Accordingly, as of week 25 of 2008, the employee is eligible for benefits based upon any wages paid for work performed for the employer.

Dated and mailed January 23, 2009
callaca : 150 ET 481 

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the hearings regarding her impressions of witness credibility and demeanor. The commission's reversal of the ALJ's decisions is not based on the credibility of the witnesses but because it reaches a different legal conclusion when applying the law to the facts.

cc: Attorney Nicholas Fairweather


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