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

MARK K ROSENBAUM, Employee

OTTAWA UNIVERSITY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09605676MW


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, except that it makes the following modification:

Replace the second sentence of the DECISION paragraph, with the following:

Accordingly, during week 48 of 2008, the employee is ineligible for benefits based on or upon such services.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, during week 48 of 2008, the employee is ineligible for benefits based on or upon such services.

Dated and mailed November 19, 2009
rosenma : 150 : 5   ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The employee petitioned the appeal tribunal decision, arguing that the reasonable assurance provision should not apply to deny him benefits based upon such services. Specifically, he argued that he worked his normal schedule in week 48 of 2008, the week of the Thanksgiving recess. In Rein Steingrabe v. Hustisford School District, UI Dec. Hearing No. 05600905WB (LIRC October 6, 2005), the commission explained,

while the employee worked partially for the employer and was paid her normal weekly salary, the commission finds that week 52 was still a "week of unemployment" within                                    Wis. Stat. § 108.04(17) (g).  Specifically, in Brookman et al., v. Milwaukee Public School, UI Dec. Hearing No. 89603455MWG (LIRC August 27, 1990), the commission defined "any week of unemployment which occurs during an established and customary vacation period or holiday recess" as "any calendar week in which some period of unemployment occurs during an established and customary vacation period or holiday recess."

Given the employee's claim for partial benefits in week 48, the commission treats this as a "week of unemployment" within the meaning of Wis. Stat. § 108.04(17)(g). See Weiler v. UW Madison, UI Dec. Hearing No. 05001829MD (LIRC July 15, 2005). Such application is also consistent with the policy underlining this statutory provision, specifically not to subsidize school employees during customary or agreed to vacation periods. See Brookman.

For these reasons, as well as those set forth by the ALJ, the appeal tribunal decision is affirmed with modification to reflect the effect of the application of this statutory provision.


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