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

TIMOTHY J BOVIALL, Employee

PA STAFFING SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08605880WK


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, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 30, 2009
boviati . usd : 178 : 1   SW 844

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee was in a continuing employment relationship at the time that he refused the assignment which ended his employment. It argues that the ALJ failed to apply the provisions of chapter 133 to the employment relationship and wrongly applied labor standards to the offer.

The commission has carefully considered the employer's arguments but disagrees with its conclusions. The job offer was outside the county where the employee lived and agreed to work. By only offering a job outside of the contract of hire, the employer ended the employment relationship. At that point, the ALJ properly evaluated the job offer using labor standards and the wage was substantially less favorable to the employee.

If the ALJ had found that the employment relationship continued, he still would have concluded that the quitting was with good cause due to the low pay. The conditions of employment are relevant in determining whether an employee quits work within a statutory exception after completion of the first assignment. Indeed, in Cornwell Personnel Associates, Ltd. v. LIRC and Robert E. Linde, 175 Wis. 2d 537 (Ct. App. 1993,) the court affirmed the commission's finding that the employee had good cause attributable to the employer for quitting after the first assignment because he was offered work at a lower rate of pay than his previous position, and that rate of pay was below the substantially less favorable level. Therefore, Linde holds that while a second offer of work or a second assignment is not "new work," other provisions of the unemployment insurance law still apply with respect to whether the employee is eligible for benefits. Further, the court in Linde did not limit good cause attributable to situations where an employee is offered a wage rate that is less than his previous wage rate and substantially less favorable, but was simply applying the law to the facts before it. The recent revisions to the Wisconsin Administrative Code do not invalidate the findings of the Linde court.



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uploaded 2009/02/03