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

JESUS D LONDONO, Employee

Q P S, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08606367MW


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 worked for the employer, a temporary placement service, for approximately a year and a half as a packager/assembler. His last day of work was July 21, 2008 (week 29).

On July 18, 2008, the employee notified the employer he would be late for work due to transportation problems. On July 22, he again notified the employer that he would be late for the same reason. On his way to the workplace the employee telephoned the employer and was told that the client no longer wanted him to work for it because of his ongoing transportation problems.

On Friday, July 25, the employer offered the employee a new assignment starting Monday, July 28. The employee accepted the offer. However, on Monday the employee called and said that he was again experiencing transportation problems. The employee asked if he could begin the next day, but the employer said no.

The issue to be decided is whether the employee quit or was discharged, and whether he is eligible for benefits based upon that separation.

The department has promulgated rules governing the relationship between temporary help employers and their workers. Wis. Admin. Code Chapter 133 provides, in relevant part:

DWD 133.02 Employment relationship. (1) CONTINUATION OF EMPLOYMENT RELATIONSHIP. When an assignment ends, the employment relationship between an employer and an employee shall be considered a continuing relationship if all of the following conditions are met:

(a) Prior to the end of the second full business day after the end of the assignment, the employee contacts the employer, or the employer contacts the employee, and informs the other that the assignment has ended or will end on a certain date. The department may waive the requirement for the deadline or notice, or both, if it determines that the employee's failure to so contact the employer was for good cause and the employer and employee have otherwise acted in a manner consistent with the continuation of the employment relationship.

(b) Prior to the end of the second full business day after the end of the assignment, or prior to the end of the first full business day after the date notice was given under par. (a) if the deadline for the notice was waived, the employer informs the employee that the employer will provide a new assignment that will begin within 7 days and any of the following occur:

1. The employer provides a new assignment that begins within 7 days of the date of the notice.

2. A new assignment does not begin within the 7-day period specified in par. (b) (intro.), but within that same 7-day period, the employer notifies the employee that the start of the assignment will be delayed for a period not to exceed an additional 7 days. The delayed assignment begins within 7 days of the date that the employer notified the employee of the delay.

3. A new assignment does not begin within the 7-day period specified in par. (b) (intro.), but within that same 7-day period, the employer notifies the employee that the employer will provide another assignment that will begin within 7 days. This assignment begins within 7 days of the date that the employer notified the employee of the assignment.

(c) The assignment offered by the employer meets the conditions under which the individual offered to work, including the type of work, rate of pay, days and hours of availability, distance willing to travel to work, and available modes of transportation, as set forth in the individual's written application for employment with the employer submitted prior to the first assignment, or as subsequently amended by mutual agreement. The employer shall have the burden of proof to show that the assignment meets the requirements of this paragraph. If the employer offers an assignment that does not conform to the requirements of this paragraph, the employment relationship ends under sub. (2).

(2) SEPARATION OF EMPLOYMENT BY EMPLOYER. If the employment relationship does not continue under sub. (1), the employment shall be considered separated by the employer unless the employee has voluntarily separated from the employment under sub. (3).

(3) SEPARATION OF EMPLOYMENT BY EMPLOYEE. (a) An employee voluntarily separates from the employment when any of the following occur:

1. The employee fails to notify the employer that an assignment has ended if the employer's policy requires the notification prescribed by sub. (1) (a) and the employee had notice of this policy prior to the end of the assignment, provided that the employer is not aware that the assignment has ended, and provided that the notice requirement was not waived under sub. (1) (a).

2. The employee refuses an assignment while the employment relationship continues.

3. The employee fails to respond to an offer of work by the employer within a reasonable time period, while the employment relationship continues.

4. The employer is unable to communicate an offer of work to the employee because of the employee's failure to provide the employer with his or her correct address, telephone number, or other contact information while the employment relationship continues.

(b) Nothing in this chapter shall preclude the application of other provisions of ch. 108, Stats., to determine whether the employee separated from the employment.

DWD 133.03 Treatment of time between assignments. An employee shall be eligible for unemployment insurance benefits while the employment relationship continues between assignments pursuant to s. DWD 133.02 (1), if the employee is otherwise qualified for those benefits.

DWD 133.04 Relationship following termination. When an employee's employment relationship with an employer terminates, his or her application for employment with that employer shall expire. If the employee returns to work for the employer, a new written application for employment shall be required for this chapter to be applicable. If the employee agrees in writing, the original application may be treated as a new application for employment.

The employee's last day of work for the employer was July 21, 2008. On July 22 he was notified that his assignment had ended. In order to continue the employment relationship the employer had to inform the employee prior to the end of July 24 (week 30), the second full business day after his assignment ended, that it would provide a new assignment that would begin within 7 days. The employer did not do so, and the employment relationship was terminated.

Although there was a subsequent offer of work on July 25, that offer was withdrawn after the employee sought to postpone the start date by a day. No new employment relationship began.

The commission, therefore, finds that the employee was discharged in week 30 of 2008, and not for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is modified as to the week of issue and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2008, provided he is otherwise qualified. He is not required to repay the sum of $597 to the Unemployment Reserve Fund.

Dated and mailed January 30, 2009
londoje . urr : 164 : 1 VL 1025

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of credibility, but on an application of Wis. Admin. Code § DWD 133 to essentially the same set of facts as that found by the appeal tribunal.


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