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

JILL E PETERSON ERICKSON, Employee

COOP EDUCATIONAL SERVICE
AGENCY #11, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08202377EC


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 unemployment insurance benefits based upon her employment with the employer.

Dated and mailed February 13, 2009
peterji : 150   ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employer, an educational service agency, petitioned the appeal tribunal decision arguing that the employee should be denied unemployment insurance benefits as of week 25 of 2008. Specifically, it argued that the employee performed services as a school year employee for the 2007-2008 academic year and that as of the summer break before the 2008-2009 academic year, she had reasonable assurance of performing similar work; as such, it argued that she should not be eligible for unemployment insurance benefits during the summer recess.

In the 2007-2008 academic year, the employee performed services as a speech language pathologist for the employer, an educational service agency, at a school. The school district ended its contract with the employer and the employee received a layoff effective at the end of the academic year. On June 25, 2008 (week 26), the employee signed a teaching contract directly with the school district, to perform work as a speech language pathologist for the school under almost the same conditions of employment as she had had with the educational service agency.

The ALJ allowed benefits, citing the fact that the "type" of employer had changed from the 2007-2008 to the 2008-2009 academic year. This analysis is correct. In particular, the paragraphs of Wis. Stat. § 108.04(17) are divided by type of employer, type or capacity of employment and the period of unemployment involved. The type of employer must remain the same for the reasonable assurance provisions to apply; this statutory distinction is federally based and is explained in Unemployment Insurance Program Letter (UIPL) 30-85, dated July 12, 1985, as follows in section 4 b:

b. Employer crossover situations. Denial of benefits to educational employees, either between terms or within terms, is not permitted under Section 3304(a)(6)(A), FUTA, when the claimant is crossing over from one type of employer to another. Clauses (i), (ii), and (iii) clearly require reasonable assurance of continued employment with the same type of employer (i.e., an educational institution) as a condition for denial during a period between or within terms. Clause (iv) requires denial " . . . as specified in clauses (i), (ii), and (iii) . . .," while clause (v) permits denial " . . . under the same circumstances as described in clauses (i) through (iv) . . . ." "As specified" and "same circumstances" are interpreted as precluding denial unless there is reasonable assurance of continued employment with the same type of employer, an interpretation that is consistent with existing and previous interpretations of clauses (i), (ii), and (iii), Section 3304 (a)(6)(A), FUTA.

The appeal tribunal decision is, thus, affirmed as written.



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