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

JAMES L. FRANKKI , Employee
 

UW COLLEGES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08004550MD


Administrative law judge (ALJ) Smith for the Division of Unemployment Insurance of the Department of Workforce Development issued decisions for hearing numbers 08004550MD and 08004551MD involving the same parties, namely the employee and UW Colleges. At the hearing for 08004550MD, the ALJ received permission to merge the hearing records in these matters. A timely petition for review was filed for these two decisions.

The commission has considered the petitions and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission consolidates the matters for efficiency and makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee performed services as a German lecturer at the University of Wisconsin at Waukesha (UW Waukesha) for nine years, ending in May 2006. He was last paid $39,455 for his services for the 2005-2006 academic year, under a nine month contract. His last day of work was May 26, 2006 (week 21) with the contract ending May 28, 2006 (week 22).

In March 2006, the UW Waukesha offered the employee reduced work for the following academic year. Specifically, it offered him a half-time position for the 2006-2007 academic year. The position paid $18,000 and was to start September 6, 2006 (week 36). The employee refused the position due to the pay cut.

Summer 2006 Unemployment Insurance Claim

Departmental records reflect that the employee initiated a claim for unemployment insurance benefits on May 31, 2006, (week 22). As part of this claim, the employee's refusal of the half time position was investigated as a possible quitting. Additionally, a determination was issued finding the employee worked in a professional capacity for an educational institution but did not have reasonable assurance of similar work in the next school year; therefore, unemployment benefits were allowed. He was paid unemployment insurance benefits totaling $3751 for the calendar weeks ending June 3, 2006 through August 12, 2006 (weeks 22-32).

2006-2007 Academic Year

After refusing the offer of part time work from UW Waukesha, the employee began looking for academic teaching positions nationally. As of June 20, 2006 (week 25), the employee accepted a position for the 2006-2007 academic year as a visiting professor for Oklahoma State University (Oklahoma State) in Stillwater, Oklahoma. To accept this position, the employee had to move to Oklahoma; he was paid $30,000 for the nine month contract for Oklahoma State. The position started August 25, 2006 (week 34). The employee's wife remained in Wisconsin during his employment and he considered himself attached to the Waukesha labor market. There is no evidence that he was offered continuing teaching services for Oklahoma State for the 2007-2008 academic year.

Summer 2007 Unemployment Insurance Claim

The employee returned to his home in Wisconsin for the summer of 2007. Departmental records reflect that the employee initiated a claim for unemployment insurance benefits on May 16, 2007 (week 20). Based upon reported partial wages, he was paid unemployment insurance benefits totaling $180 for the calendar week ending May 19, 2007 (week 20). He received $355 per week for the calendar weeks ending May 26 through June 16, 2007 (weeks 21 - 23) and July 21 through August 18, 2007 (weeks 29 through 33). He was paid partial benefits of $234, $294 and $314 for the calendar weeks ending June 23, July 7 and 14, 2007 (weeks 25, 27 and 28). During this period the employee also performed text writing services for the University of Wisconsin at Madison (UW Madison), he reported the monies he was paid for these services and his benefits were reduced accordingly.

As of week 22 of 2007, the employee's base period consisted of the first through fourth calendar quarters of 2006. In that base period, he had wages in the first and second quarter from UW Colleges.

2007-2008 Academic Year

The employee again used a national job search and secured employment for the 2007-2008 academic year as a visiting assistant professor for Sam Houston State University (Sam Houston) in Texas. He was paid under a nine month teaching contract, teaching 12 credits in the Fall semester and 15 credits in the Spring semester and was paid $45,000 for the contracted dates September 3, 2007 (week 36) through May 31, 2008 (week 22). (1)

In the spring of 2008, Sam Houston decided to reclassify the visiting assistant professor position to an assistant professor position on tenure track with increased duties including committee work and program development. In March 2008, the employee applied for the position, competed for it and received the position.

Over the summer of 2008, the employee returned to Waukesha, where his wife still resided and filed for and received unemployment insurance benefits. In the calendar week ending May 20, 2008 (week 21), the employee opened a claim for unemployment insurance benefits; department records reflect that the employee was paid $355 in unemployment insurance benefits for that week based upon his base period consisting of the calendar year 2006, again base period wages from UW Colleges.

A new benefit year began as of week 22 of 2008, the calendar week ending May 31, 2008. His base period consisted of the calendar year 2007 and contained wages from UW Madison,2(2) Oklahoma and Texas. For the calendar weeks ending May 31 through August 23, 2008 (weeks 22-34), the employee was paid $355 per week.

2008-2009 Academic Year

For the fall of the 2008-2009 academic year, the employee returned to Sam Houston to his contract as assistant professor on the tenure track with increased duties including committee work and program development.

Unemployment Insurance Investigation, Determinations and Decisions

In September 2008, the Texas employer contacted the Wisconsin Unemployment Insurance Division questioning whether reasonable assurance had been investigated. The department began such an investigation which resulting in the following:

On October 4, 2008, a determination (LID) number 080547102 was issued, finding that as of week 22 of 2008, the employee did not perform services as a school year employee with the UW Madison and benefits were allowed if the employee was otherwise eligible.

On October 8, 2008, LID #080551912 was issued with the named employer Sam Houston, finding that as of week 20 of 2008, the employee was ineligible for unemployment insurance benefits under the reasonable assurance provision and that the employee was overpaid unemployment insurance benefits totaling $3,575 that he was to repay.

On October 8, 2008, LID #080551902 was issued with the named employer Oklahoma State, finding that as of week 20 of 2008, the employee was ineligible for unemployment insurance benefits under the reasonable assurance provision and that the employee was overpaid unemployment insurance benefits totaling $3,575 that he was to repay.

On October 18, 2008, LID # 080572872, was issued with the named employer UW Colleges finding that as of week 20 of 2007, the employee did not have reasonable assurance and benefits were allowed if the employee was otherwise eligible.

On October 18, 2008, LID #080572932 was issued with named employer UW Colleges finding that as of week 32 of 2007, the employee had reasonable assurance and was overpaid unemployment insurance benefits totaling $710 that the employee was to repay.

On October 18, 2008, LID #080572812 was issued with named employer UW Colleges finding that as of week 20 of 2008, the employee had reasonable assurance and was overpaid unemployment insurance benefits totaling $355 that the employee was to repay

The employee appealed determination numbers 080572812 and 080572932 timely resulting in appeal tribunal hearings, numbers 08004550MD and 08004551MD respectively. The employee also appealed determination numbers 080551902 and 080551912; those appeals were treated as not timely, resulting in appeal hearings on the issue of the timeliness of the appeal and whether he was entitled to a hearing on the underlying reasonable assurance issues.

On November 18, 2008, ALJ Smith conducted four hearings with the employee. On November 21, 2008, ALJ Smith issued four decisions:

For hearing no. 08004548MD, ALJ Smith found that the employee filed a timely appeal for the determination no. 080551902, with a hearing on the merits was to be scheduled.

For hearing no. 08004549MD, ALJ Smith found that the employee filed a timely appeal for the determination no. 080551912, with a hearing on the merits was to be scheduled.

For hearing no. 08004550MD, ALJ Smith found that, as of week 20 of 2008, with named employer UW Colleges, the employee had reasonable assurance and was erroneously paid unemployment insurance benefits. ALJ Smith remanded the issue of whether an overpayment existed that the employee was to repay.

For hearing no. 08004551MD, ALJ Smith found that, as of week 32 of 2007, with named employer UW Colleges, the employee had reasonable assurance and was erroneously paid unemployment insurance benefits. ALJ Smith remanded the issue of whether an overpayment existed that the employee was to repay.

On December 12, 2008, the employee petitioned for the commission to review the decisions issued for hearing nos. 08004551MD and 08004550MD.

The two hearings to be held on the merits were held on December 17, 2008 by ALJ Junceau. ALJ Junceau issued two appeal tribunal decisions on December 19, 2008:

For hearing no. 08004996MD, ALJ Junceau found that, in weeks 21 through 34 of 2008, with named employer Oklahoma State, the employee had reasonable assurance and the repayment of the overpaid unemployment insurance benefits totaling $3,575 was waived because the overpayment was due to department error.

For hearing no. 08004997MD, ALJ Junceau found that, in weeks 21 through 34 of 2008, with named employer Sam Houston, the employee had reasonable assurance and the repayment of the overpaid unemployment insurance benefits totaling $3,575 was waived because the overpayment was due to department error.

On December 30, 2008, a LID number 080710722 was issued, finding that as of week 32 of 2007, benefits were erroneously paid solely due to departmental error, consequently repayment was waived; this determination referenced a decision dated October 17, 2008. (3)

On December 30, 2008, a LID number 080710702 was issued, finding that as of week 20 of 2008, benefits were erroneously paid solely due to departmental error, consequently repayment was waived; this determination referenced a decision dated October 17, 2008. (4)

On December 31, 2008, a LID number 080230920 was issued, finding that as of week 22 of 2008, benefits were erroneously paid solely due to departmental error, consequently repayment was waived; this determination referenced a decision dated December 19, 2008. (5)

The employee petitioned the appeal tribunal decisions issued by ALJ Smith based upon his contentions that:

1. reasonable assurance should not exist for either period because the work is outside his labor market, and

2. if reasonable assurance was found, the overpayment was not his fault, it was due to department error and, as such, he should not be required to repay it.

Issue

The issue before the commission is whether the employee should be denied benefits for the summer recesses between:

Applicable Statutory Provision

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.

Wisconsin Statute § 108.02(22m), provides as follows:

"School year employee" means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require the performance of services on a year-round basis.

Given the employee's teaching services institutions of higher learning, he is a "school year employee" and pursuant to Wisconsin Stat. § 108.04(17)(a) he will be denied benefits upon school year employment during the summer breaks if he "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."

In Leissring v. DILHR, 115 Wis. 2d 475 (1983), the Wisconsin Supreme Court held that the terms and conditions of the employment for the following year must be reasonably similar to those in the preceding year. Wis. Administrative Code § DWD 132.04(2) sets the following guidelines for determining whether work is reasonably similar; specifically, it provides that work is reasonably similar if:

(a) The gross weekly wage is more than 80% of the gross weekly wage earned in the academic year or term which preceded the weeks of unemployment;

(b) The number of hours per week is more than 80% of the average number of hours worked per week in the academic year or term which preceded the weeks of unemployment; and

(c) The employment involves substantially the same skill level and knowledge as the employment in the academic year or term which preceded the weeks of unemployment.

In Leon Bunker v. LIRC, Loyal Public School, Peshtigo School Dist. 197 Wis. 2d 606, 541 N.W.2d 168 (Ct. App. 1995), the court explained that the employment for which a worker receives reasonable assurance need not be from the same employing unit as long as the work is reasonably similar. Yet, the Bunker court also found that the Administrative Code points were not exclusive,

location of a job is a condition of employment that must be reasonably similar to the teacher's locale in the preceding year. Changing residences or long commutes often causes social, personal and economic hardships.
. . .
Other areas of employment law do not require an employee to move or commute an unreasonable distance to a job to remain available for U.C. benefits. . . Bunker 197 Wis. 2d 606, at 615.

Finally, in Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991), "such services" was interpreted as the services that initially qualified the employee for benefits. The commission has opined that the Wanish Court's analysis of the meaning of "such services" applies to all parallel statutory provisions using the "such services" language and has consistently taken this approach.

Does Reasonable Assurance exist as of week 32 of 2007?

For the 2007 recess, the employee did not have reasonable assurance because he was going outside his labor market for the work. See Bunker and the chart below.
 

Base Period 2006-2007 Academic Year Summer Break – 2007-2008 Academic Year
UW Colleges
German Lecturer,
Waukesha, WI
F/T, $39,455
 Oklahoma State
Visiting Professor
Stillwater, OK
F/T, $30,000
Claims filed in weeks 20 – 33 of 2007, returned to Wisconsin for break   Sam Houston
Visiting Professor
Texas
F/T $45,00

Does Reasonable Assurance exist as of week 20 of 2008?

However, for reasonable assurance as applied to the summer 2008 break, the employee can no longer claim Wisconsin as his exclusive labor market and reasonable assurance should be found. In particular, he worked in Texas for the 2007/2008 academic year, reapplied and was accepted to work for the next academic year at the same location. The commission declines to extend the Wanish analysis to the labor market analysis as, in this case, the employee's labor market has changed to include his Texas employment location. See chart below.

 

Base Period 2007-2008 Academic Year  Summer Break - 2008-2009 Academic Year
UW Colleges
German Lecturer,
Waukesha, WI
F/T, $39,455 and
Oklahoma State
Visiting Professor
Stillwater, OK
F/T, $30,000
Sam Houston
Visiting Professor
Texas
F/T $45,000
 Claims filed in weeks 20 - 33 of 2007, returned to Wisconsin for break    Sam Houston
Assistant Professor/Tenure Track,
Texas,
$46,800


Benefit Payment

Given the finding that reasonable assurance did not exist as of week 32 of 2007, the employee was eligible for benefits and benefits were not erroneously paid.

However, given the finding for week 20 of 2008, the employee was erroneously paid benefits and the next issue is whether the erroneously paid benefits should be treated as overpaid and whether the employee is required to repay the overpayment.

The department determinations issued in December 2008 found that any overpayment of benefits as of week 32 of 2007 and as of week 20 of 2008 was due solely to department error. Department record support this, specifically although the department should have been on notice to investigate the application of Wisconsin Stat. § 108.04(17)(a) for the 2007 and 2008 summer breaks prior to paying benefits, the matters were not investigated. There is no evidence of either employer or employee fault, thus for the benefits paid as of week 20 of 2008, repayment of the overpayment is waived.

For Hearing No. 00884550MD

The commission therefore finds that as of week 20 of 2008, the employee performed services in an instructional, research, or principal administrative capacity during the 2007-2008 academic year and had reasonable assurance of performing such services in the 2008-2009 academic year.

For Hearing No. 00884551MD

The commission therefore finds that as of week 32 of 2007, the employee performed services in an instructional, research, or principal administrative capacity during the 2006-2007 academic year and did not have reasonable assurance of performing such services in the 2007-2008 academic year.

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the claimant or the employer, as provided in Wis. Stat. § 108.04(13)(f) and the overpayment was a result of departmental error within the meaning of Wis. Stat. § 108.02(10e)(a) and (b).

DECISION

The decisions of the administrative law judge are modified to conform with the above findings and, as modified, are reversed in part and affirmed in part. Accordingly, as of week 32 of 2007, the employee is eligible for benefits based upon any wages paid for work performed as a school year employee. However, as of week 20 of 2008, the employee is ineligible for benefits based upon wages paid for work performed as a school year employee. The employee has been overpaid benefits based upon the finding of reasonable assurance as of week 20 of 2008 but recovery of the overpayment is waived.

Dated and mailed March 12, 2009
frankja : 150 : ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the ALJ prior to issuing its decision in these matters. The commission's partial reversal is due to its reaching a differing legal conclusion on the undisputed facts.

 


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uploaded 2009/04/03


Footnotes:

(1)( Back ) Yet, the employee's actual first day of work was August 20, 2007 (week 34) and his last day of work of May 17, 2008 (week 20).

(2)( Back ) The wages from this employment were not earned in school year employment.

(3)( Back ) It appears that this is an incorrect date reference, the named employer and week of issue are consistent with the remand attributed to hearing no. 08004551MD.

(4)( Back ) It appears that this is an incorrect date reference, the named employer and week of issue are consistent with the remand attributed to hearing no. 08004550MD.

(5)( Back ) It appears that this determination was unnecessary as the December 19, 2008 decisions by ALJ Junceau found the overpayments were solely due to departmental error and waived repayment.