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

DOROTHY J BOOKER, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09608026MW


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 has worked approximately 13 years as a general education assistant for the employer, a public school system. Beginning in 2000, the employee began performing services at the Wheatley School, a school which has an extended school year and, consequently, a shorter summer recess.

As of the last day of the employee's work, June 23, 2009 (week 26), the employee had been notified that she was being laid off due to a shortage of positions.

On July 23, 2009 (week 30), the employee was sent a letter, indicating that her layoff had been rescinded and advising her to report to the "reassignment assembly" on August 27 and 28, 2009 (week 35). At the reassignment assembly, the employee would pick up an available position based upon seniority.

Had the employee not been laid off originally, she would have returned to her general education assistant position at the Wheatley School in the calendar week ending August 8, 2009 (week 32).

At the reassignment assembly in week 35, the employee was able to secure the general education assistant position at the Wheatley School to begin in week 36.

Wis. Stat. § 108.04(17)(a)(1), provides,

(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 any 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; or

The issue before the commission is whether, as of week 30 of 2009, the employee was a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(a)1.

The employee petitioned the appeal tribunal decision, referencing her different/longer schedule and payment system. Essentially, she is arguing that she is not a school year employee and should be allowed benefits.

A "school year employee" is defined as an employee (of the institutions listed above) who "performs services under an employment contract which does not require the performance of services on a year-round basis." See Wis. Stat. § 108.02(22m). In Ashleson et al. v. LIRC and CESA # 11, 216 Wis. 2d 23, 32; 573 N.W.2d 554 (Ct. App. 1997), the Wisconsin Supreme Court stated that the school year employee definition was "clear and unambiguous," requiring an employment contract that does not require performance of services year-round.

Yet, the commission has not limited the "school year employee" analysis to the length of service. In Suprenand v. Moraine Park Vocational Technical & Adult Education District, UI Dec. Hearing No. 02000535FL (LIRC September 19, 2002), the commission found that an educational employee, who only worked 47 weeks annually, was "not a school year employee" because:

(1) her unemployment was not tied to any customary vacation or between terms period,
(2) she was not restricted to working during the school year, and
(3) she was not off work because of the employer's summer, holiday or other customary break period.

Also, in Wabnitz v. Oshkosh Public School, UI Dec. Hearing No. 03404679AP (LIRC July 20, 2004), the commission supported a no "school year employee" finding with the fact that:

(1) the employee's services were not tied to the school district in an educational capacity (i.e. the services of officiating of adult basketball and adult softball games were for the employer's adult recreation department) and
(2) those services were not tied "timing wise" to the school year.

In this case, given the relationship and connection of the employee's services to the school year (albeit a slightly longer one at her school), the employee is a school year employee.

While the employee was mailed a notice that her layoff was rescinded in week 30, the letter did not direct her to return to her position at the Wheaton school as she "normally" would have in week 32; instead she was directed to attend the "reassignment assembly" in week 35.

For the reasonable assurance provision to apply, the terms and conditions of the employment assured of for the following year must be reasonably similar to those in the preceding year. Leissring v. DILHR, 115 Wis. 2d 475 (1983). 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. Leon Bunker v. LIRC, Loyal Public School, Peshtigo School Dist., 197 Wis. 2d 606, 541 N.W.2d 168 (Ct. App. 1995).

Reasonable assurance is "assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance in making decisions related to employment and income." Bruce A Brookman, et. al. v. Milwaukee Public Schools, UI Dec. Hearing No. 89602703MWG (LIRC, May 9, 1990).

In establishing reasonable assurance, employers have the burden to present evidence showing that the opportunity to teach in the upcoming school year will be similar to the opportunity in the prior year; in substitute teaching settings such evidence "includes the number of substitutes the employer anticipates needing, how many substitutes it has to select from, and how substitutes are selected." See Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC 9/3/1999).

In Raduenz v. Racine Public School District, UI Dec. Hearing No. 0065222RC (LIRC September 15, 2000), the commission found no reasonable assurance for a laid off teacher who was notified of the employer's general policy that displaced teachers not assigned through the posting process by July 15 would be assigned to a position held by a teacher with lesser length of service within her area of certification.

In this case, there is no evidence of any past practice that would establish the reliability of securing similar employment at the "reassignment assembly." Additionally, the employer did not provide any evidence of the positions that would be available to the employee at the assembly or her place in seniority among the other general educational assistants that would be "picking" positions. This uncertainty is compounded by the fact that the assembly was scheduled after her "normal" return to work with the employer. However, once the employee attended the assembly, she had reasonable assurance of such services for the 2009-2010 academic year.

The commission therefore finds that the employee performed services in an instructional, research, or principal administrative capacity in the 2008-2009 academic year but she did not have reasonable assurance of performing such services in weeks 27(1) through 34 in the 2009-2010 academic year within the meaning of Wis. Stat. § 108.04(17)(a)(1).

The commission further finds that the employee performed services in an instructional, research, or principal administrative capacity in the 2008-2009 academic year and that as of week 35 of 2009, she had reasonable assurance of performing such services in the 2009-2010 academic year within the meaning of Wis. Stat. § 108.04(17)(a)(1).

DECISION

The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the employee is eligible for benefits based upon school year employment in weeks 27 through 34 of 2009, if otherwise qualified. As of week 35 of 2009, the employee is ineligible for benefits based upon school year employment.

Dated and mailed February 12, 2010
bookedo : 150 : ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


NOTE: The commission did not consult with the ALJ who presided at the hearing regarding his impression of witness credibility and demeanor because the commission's reversal is based upon a differing legal conclusion.


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uploaded 2010/02/19


Footnotes:

(1)( Back ) The commission uses week 27 as department records reflect that this is the first week of summer recess that the employee sought payment of benefits.