DEBRA A TUCKER, Employee

NEXT DOOR FOUNDATION INC, Employer

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:

The employee has worked for four and a half years as a full-time classroom assistant for the employer a non profit foundation. Her services are part of a Head Start program. Her services for the 2008-2009 school year ended on Friday, June 5, 2009 (week 23).

On June 4, 2009, the employee received a letter from the employer, Exhibit 1, which provides that the employer anticipated a recall date for the 2009-2010 school year to be Tuesday, August 18, 2009 (week 34) and that she would return to her "same/similar position and pay rate" as the previous school year. The letter gave instructions regarding filing an unemployment insurance benefit claim and provided that the employee was "a Head Start Teacher providing educational services on behalf on SDC, a social service agency."

The employee also testified that she had received unemployment insurance benefits in past summer recesses.

Wis. Stat. § 108.04(17)(b)1 provides that

(b) A school year employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf 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 any such government unit, Indian tribe, or nonprofit organization in the first such year or term and if there is reasonable assurance that he or she will perform such services for any such government unit, Indian tribe, or nonprofit organization in the 2nd such year or term; or

The ALJ found reasonable assurance denying her benefits for the summer 2009 recess. The employee petitioned, citing past eligibility and supporting her claims for eligibility on the grounds that she was paid hourly vs. salaried.

The issue before the commission is the applicability of Wis. Stat. § 108.04(17) to the employee's claim for unemployment insurance benefits for weeks 24 through 34 of 2009, the period between the 2008/2009 and the 2009/2010 academic years.

Specifically, the reasonable assurance provisions require the removal of base period school year employment wages from a claimant's computation of benefits when the claimant's work satisfies the criteria set forth in Wis. Stat. § 108.04(17); conversely, all school year base period wages should remain in the computation for benefits if reasonable assurance does not exist. Sarah J. Corona v. Kenosha Public School and Racine Unified School District, UI Dec. Hearing Nos. 06605019RC and 06605020RC (LIRC, April 13, 2007). It is an employer's burden to establish disqualification under the reasonable assurance provisions. See Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999).

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. To determine whether the reasonable assurance provisions should be applied to the employee, the commission must first determine whether the employee's services for the employer, a nonprofit foundation, are "services to or on behalf of any educational institution." See Wis. Stat. § § 108.04(17)(b) or (e).

The Wisconsin legislature's reasonable assurance provisions are guided by the federal law and the need for conformity. Prior to 1979 services performed in Head Start programs were not considered services for an educational institution and were specifically excluded by Supplement 4 to the 1976 Draft Legislation. Then, with Unemployment Insurance Program Letter (UIPL) No.40-79, issued August 13, 1979, the Federal position was modified to allow states to apply the between terms denial to situations in which

A local board of education operates a Headstart program as an integral part of the school system in facilities of an educational institution, with Headstart workers as employees of the board and the schools in every respect; i.e., subject to all employing policies, such as hiring, firing, working conditions, as other employees performing services for the educations institution. See UIPL No. 40-79.

On September 30, 1997 UIPL No. 41-97 was issued to further clarify the Department of Labor's position on whether Head Start agencies were "educational institutions" for "between and within terms denials" under § 3304(a)(6)(A) FUTA. In particular, in 1983, provisions were added to allow States to apply the between and within terms denial to services "provided to or on behalf of" an educational institution by a government entity or a nonprofit organization. As it relates to services for non-profits, the UIPL explained that the "on behalf of" language was more restrictive and fact specific than the "provided to" language; the UIPL further explained that a State which implements this clause may limit the scope and/or time but must uniformly apply the limitation throughout the State.

The Wisconsin Unemployment Insurance Division has implemented the following policy within Part III B section A of the Disputed Claims Manual, (dated July 14, 2008):

A. The school year employee provision applies to Headstart employees if:

The employees work for a CESA, or

The employees work for a government unit, nonprofit organization or Indian tribe that provides services to or on behalf of an educational institution, or

The Headstart program is operated by a board of education and the Headstart employees are treated the same as other employees of the school.

The above policy ensures uniform application of the limitation regarding Headstart employees. While the employer did not appear at the hearing in this matter, it provided the employee with Exhibit 1, noting that her services were not performed for an educational institution but for a social service agency. No other evidence was offered of services "on behalf of an educational institution," a CESA or Headstart program operated by a board of education with the Headstart employees treated the same as other employees of the school.

The commission therefore finds that the employee's services were not performed for an educational institution during an academic year or term, within the meaning of Wis. Stat. § 108.04(17).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits during weeks 24 through 34 of 2009, based upon wages paid for work performed in school year employment.

Dated and mailed November 23, 2009
tuckede : 150 : 5   ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: Finally, the commission's reversal of the appeal tribunal decision would be as a matter of law and does not involve an assessment of the credibility of the witnesses in this case. Thus, no credibility conference is required. Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 195 N.W.2d 656 (1972).

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