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

SANDRA L BOWE et al, Employee

CHIPPEWA FALLS PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09201879ECG

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

Bowe, Adams, Beranek, Dachel, Stoffel and McKillip perform services for the employer, the Chippewa Falls Public School System, a K-12 educational institution.(1) Beranek, Bowe, Stoffel and Dachel work as Clerk Secretary IIIs in the employer's high school. McKillip works as an Account Clerk II in the middle school. Adams works as Clerk Secretary III in the middle school. All of these individuals currently work under an 11 month contract. Adams was under a 12-month contract until December 14, 2008, when she was bumped out of her position and then bumped into an 11-month position effective December 15, 2008.

Under the 11-month contract, each claimant is off work for a few weeks in the summer, usually around July. In past years, the employer conceded that it allowed these workers some flexibility in arranging their time off but it now follows a more formal approach. A typical 11-month contract for the employer runs from August 1 through June 30. Days off are staggered to provide greater coverage for the employer during the month of July. Beranek and Stoffel had contracts that were to run from August 1 through June 30. Bowe and Dachel had contracts to work from July 27 through June 23 and McKillip and Adams were not scheduled during the month of July. Each worker performs services related to student education and records as assigned by the administrative team, the principals or, in the case of Beranek, the activities director, who assigned work related to student athletics. In addition to decreasing the work schedule flexibility, the employer also eliminated opportunities for the named individuals to perform additional work for it outside their contracted employment; for example, some individuals performed additional office work and cleaning at a lower rate of pay during the summer recess period.

The employer's school year for students runs approximately from Labor Day to Memorial Day. Each of the claimant's positions provides support to students and/or administrators or other personnel for the employer. Their hours of work during the summer when the students are not in session are reduced.

The claimants are members of a union and are subject to a collective bargaining agreement, which has defined their 11 month contracts. The claimants have chosen to have their salaries pro rated so that they are paid over the course of the 12 months. The 11-month contract claimants pay their own insurance during the month they are not scheduled to work in the summer. During the 11 month contract period, they do receive paid holidays, personal days and inclement weather days but cannot use those during the first or last five days school is in session.

In May 2009, each of the claimants was provided with a calendar of the 2009-2010 school year notifying them that they would be returning to work for the following year in their same positions.

Applicable Reasonable Assurance Provision

Wis. Stat. § 108.04(17)(d), provides,

A school year employee of an educational institution who performs services other than in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a 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 there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term.

The above statutory provision provides that wages earned in school year employment cannot be used to qualify or pay benefits during regular non-work periods if the employee has reasonable assurance of similar work when school resumes. In Leissring v. DILHR, 115 Wis. 2d 475 (1983), the Wisconsin Supreme Court explained that the provision was originally designed to "prevent subsidized summer vacations" for those "who are employed during one academic year and who are reasonably assured of resuming their employment the following year." This particular statutory provision developed from Federal law and was adopted by Wisconsin over twenty years ago. It is specific to educational institutions and the school year workers they employ.(2)

School Year Employee

The first issue to be decided is whether the above named employees are school year employees who are subject to the reasonable assurance analysis found at Wis. Stat. § 108.04(17)(d) and, if so, the effect of such a determination upon their benefit eligibility.

At the appeal tribunal hearing, the claimants argued they were not school year employees because their work was not tied to the school year. Specifically, they argued that they worked longer into the summer recess and did not receive some of the same days off during the school year as teachers. The commission disagrees. Wisconsin Statute § 108.02(22m) defines a "school year employee" as:

"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.

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. In Engel v. Northcentral Technical College, UI Dec. Hearing No. 08201698EC (LIRC, October 31, 2008), the commission explained the "second factor" in determining whether an individual is a "school year employee" as

the "connection" or "integration" of the claimant's work with the employer's educational program or goals as it relates to the Wis. Stat. § 108.02(22m) language of providing "services to or on behalf of an educational institution."

Recently, in Booker v. Milwaukee Public School, UI Dec. Hearing No. 09608026MW (LIRC February 12, 2010), the commission found that though the claimant's services extended beyond the standard school year, the services were still less than year-round and given the relationship and connection of the claimant's services to the school year, she was a "school year employee." Specifically, in Booker, the claimant performed services as a general education assistant at a school which had a longer academic year than the other schools in the district.

On the other hand, 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 the employee's services were not connected 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) with the services running from November to August. Similarly, in Engel, the commission found that the services were not performed as a school year employee where, although the claimant worked 47 weeks per year and some of her services were connected with the employer's educational goals, some services were provided to the employer's community partnership programs and were unrelated to the employer's educational goals.(3)

In this case, while the employees may not have received as many days off as the employer's teachers, they still worked less than "year round." Also, the services they performed were clearly connected to the employer's student education and academic goals. This connection with student education is further evinced by the fact that their work schedules followed the academic calendar with work hours reduced in the period between the academic terms. Thus, each of the 11 month contracted employees is a "school year employee."

Is there Reasonable Assurance?

The next issue to be decided is whether the above named employee's had reasonable assurance within the meaning of Wis. Stat. § 108.04(17)(d).

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 perform services in the upcoming school year will be similar to the opportunity in the prior year. See Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999).

Prior to the end of the 2008-2009 academic year, Adams received notice that her 11 month contract, that she had since December 15, 2008, would resume in the same capacity for the 2009-2010 academic year. The remaining five individuals also received notice prior to the end of the 2008-2009 academic year that their 11 month contracts would resume in the same capacity for the 2009-2010 academic year with only possible minor changes to the assigned days off. Thus, all six individuals received reasonable assurance of such services in the following academic year or term.

Effect of a Reasonable Assurance finding; the Importance of School Year Employment in the Base Period

Next, in order to decide whether a reasonable assurance finding before and after the break is material, the base period services must be determined to be those in "school year employment." See Torrey Jr. v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC, April 27, 2007). 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).

Five of the six individuals have been in 11-month contracts during the course of their base period. Thus, the reasonable assurance finding results in a denial of benefits to them based upon those school year employee services in the base period.

However, for Adams, her base period consists of the calendar year of 2008.(4) Testimony indicated that her position through December 14, 2008 was a 12-month position. Thus, those services in the base period performed prior to December 15, 2008 for the employer were not as a "school year employee" and, thus, while she currently has reasonable assurance, those wages should remain in her base period for computing her benefits available.

Overpayment of Benefits

Adams initiated a claim for unemployment insurance benefits on June 28, 2009 (week 27). She was paid $179 benefits in the calendar week ending July 4, 2009 (week 27) and $363 in benefits for the calendar weeks ending July 11 through August 1, 2009 (weeks 28-31). Based upon the above finding that the employee's base period wages earned prior to December 15, 2008 were not wages in school year employment, the wages are not removed from the computation of benefits. The record does not reflect details as to the amount of wages earned prior to December 15, 2009 and, as such, the commission remands this matter to the department for investigation and determination as to whether an overpayment exists and whether Adams is required to repay it.

For the remaining five individuals, there is no evidence of employer error as a basis for the erroneously paid benefits and based upon the above findings with respect to reasonable assurance, the base period wages earned by claimants in school year employment must be removed from any computation of benefits.(5) Department records reflect that they have been overpaid unemployment insurance benefits, as set forth below:

Bowe initiated a claim for unemployment insurance benefits on June 28, 2009 (week 27). She was paid $234 benefits in the calendar week ending July 4, 2009 (week 27) and $350 in benefits for the calendar weeks ending July 11 through July 25, 2009 (weeks 28-30). Based upon the above reasonable assurance finding, she was overpaid Wisconsin benefits totaling $1,284. She was also paid Federal Additional Compensation benefits (FAC).

Beranek initiated a claim for unemployment insurance benefits on June 30, 2009 (week 27). She was paid $247 benefits in the calendar week ending July 4, 2009 (week 27) and $363 in benefits for the calendar weeks ending July 11 through August 1, 2009 (weeks 28-31). Based upon the above reasonable assurance finding, she was overpaid Wisconsin benefits totaling $1,699. She was also paid Federal Additional Compensation benefits (FAC).

Dachel initiated a claim for unemployment insurance benefits on June 30, 2009 (week 27). She was paid $238 benefits in the calendar week ending July 4, 2009 (week 27) and $354 in benefits for the calendar weeks ending July 11 through 25, 2009 (weeks 28-30). Based upon the above reasonable assurance finding, she was overpaid Wisconsin benefits totaling $1,300. She was also paid Federal Additional Compensation benefits (FAC).

Stoffel initiated a claim for unemployment insurance benefits on June 28, 2009 (week 27). She was paid $247 benefits in the calendar week ending July 4, 2009 (week 27) and $363 in benefits for the calendar weeks ending July 11 through August 1, 2009 (weeks 28-31). Based upon the above reasonable assurance finding, she was overpaid Wisconsin benefits totaling $1,699. She was also paid Federal Additional Compensation benefits (FAC).

McKillip initiated a claim for unemployment insurance benefits on July 17, 2009 (week 29). She was paid $313 benefits each week for the calendar weeks ending July 11 through August 1, 2009 (weeks 28-31). Based upon the above reasonable assurance finding, she was overpaid Wisconsin benefits totaling $1,252. She was also paid Federal Additional Compensation benefits (FAC).

Issue 2: Repayment of Overpaid Benefits

The next issue to be decided is whether the five named individuals must repay the overpaid benefits.

Wis. Stat. § 108.22(8)(c) provides that repayment of overpaid benefits will only be waived if the overpayment:

(1) was due to department error and
(2) was without fault, false statement, or misrepresentation on behalf of the employee/claimant.

The primary basis of each worker's petition is that the overpayment was due to departmental error; specifically, that the adjudicator should have asked more questions to determine whether they were school year employees and that the adjudicator then had an obligation to properly adjudicate that issue. The commission disagrees.

With respect to the five individuals with overpayments, each determination was issued by a different adjudicator. Each adjudicator identified whether the services were performed in school year employment as a first issue in the reasonable assurance analysis. Each of the five adjudicators thus properly identified the school year issue. While each adjudicator came to the opposite conclusion from the ALJ and the commission,(6) the fact that the determinations were reversed does not constitute department error by itself. See Wis. Stat. § 108.02(10e).

Wis. Stat. § 108.02(10e) defines "departmental error" as an error made by the department in computing or paying benefits resulting from

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or

(b) Misinformation provided to a claimant by the department, on which the claimant relied.

In this case, the issue of whether the employees were "school year employees" required a legal conclusion. This is a fact specific inquiry and the department policy manual allows for legal interpretation based upon the facts developed; specifically, the disputed claims manual provides the following limited guidance:

A school year employee works for a school year employer, does not work on a year round basis, and generally only works during the academic year/term.

Given the fact specific analysis of such cases and the federal basis of this statutory provision, this limited policy guidance is reasonable and does not create error.

More importantly, adjudicators must base their decisions upon the facts they have available to them and federal law requires prompt payment of unemployment insurance benefits naturally necessitating a speedier investigation process at the adjudication level. At the hearing, the ALJ had the opportunity to more thoroughly question the parties, testimony was under oath, exhibits were marked and the parties were represented. The employees received benefits that they were not entitled to and, while they may not have been at fault in the payment, neither was the department.

Finally, the petitioners object to the appeal tribunal language, referencing possible fault on behalf of the claimants as a reason for rejecting overpayment waiver. The commission notes that the overpayment findings used by the ALJ appear to be standard or 'boilerplate" language to cover situations in which the waiver provision does not apply because: (1) there was no department error, (2) the employee was at fault or (3) there was both department and employee fault. There is no evidence of claimant fault on behalf of any of the five individuals with the overpayment. Instead the overpayment must be repaid because they received benefits to which they were not entitled and there was no department error in the overpayment.

The commission therefore finds that Bowe, Adams, Beranek, Dachel, Stoffel and McKillip performed services in other than an instructional, research, or principal administrative capacity, for an educational institution during an academic year or term, and that as of week 24 of 2009, each had reasonable assurance of performing such services again in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(d).

However, for Adams, the commission finds that her employment prior to December 15, 2009, the majority of her base period employment, was not performed as a "school year employee" and, thus, those wages will not be removed from her base period for purposes of determining her eligibility for unemployment insurance benefits. See Wis. Stat. Wis. Stat. § 108.04(17)(d)."

The commission further finds that Bowe, Beranek, Dachel, Stoffel and McKillip were paid benefits as set forth above for which they were not eligible and to which they were not entitled, within the meaning of section 108.03(1) of the statutes and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department within the meaning Wis. Stat. § 108.22(8)(a) and (c).

DECISION

The decision of the administrative law judge is modified to conform with the above and, as modified, is remanded with respect to Adams and affirmed with respect to Bowe, Beranek, Dachel, Stoffel and McKillip.

Accordingly for Bowe, Adams, Beraneck, Dachel, Stoffel and McKillip, the school year wages contained in the base period cannot be used to determine eligibility for unemployment insurance benefits. Each is required to repay the overpayments as set forth above and their benefit years are set aside. Additionally, this decision also results in an overpayment of FAC benefits; the claimants will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid. If benefit payments become payable based upon other employment, a new computation will be issued as to those benefit rights per individual.

For Adams, the commission finds that the wages she earned with the employer prior to December 15, 2008 were not earned as a school year employee and can be used to determine her benefit eligibility as of week 27 of 2009; it thus remands this matter to the department for investigation and determination as to whether an overpayment exists and whether Adams is required to repay it.

Dated and mailed March 16, 2010
bowesan : 150 ET 481, BR 335.04

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Lynette A. Adams
Shelly R. Beranek
Mary A. Saachel
Deborah J. Stoffel
Peggy A. McKillip
Attorney Stephen Weld

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.


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uploaded 2010/04/30


Footnotes:

(1)( Back ) Originally, Deinhammer was part of the group but following the appeal tribunal hearing, the ALJ issued a separate decision, Hearing No. 09202953EC, dealing with her eligibility for benefits. The Deinhammer decision found her base period work was not performed as a school year employee, within the meaning of the reasonable assurance provisions. That decision was not petitioned.

(2)( Back ) One of the petitioners questioned the denial of benefits as compared to other industries that may "layoff" workers at certain times. After adopting the federal guidelines, the denial was explained for the Department's Benefits Operations Manual on the May 14, 1979, JSL #25-79, as follows:

 The intent of Unemployment Compensation Legislation is to replace lost income/purchasing power attributable to lack of employment opportunity. The special seasonal nature of educational institution employment is recognized by the disqualification of school employes during customary no wage periods. Benefits are not payable during customary vacation periods to school year employes with reasonable assurance of work during the next usual employment period. No wages are lost, as wages were never paid for these periods.

(3)( Back ) These duties included assistance with the job center, W-2 client applications for childcare, assistance with rent, camera interviews, DVR services and the Disability Navigator.

(4)( Back ) The base period is defined as the first four of the last five completed quarters. Department records reflect that Adams filed her initial claim for benefits at the end of June of 2009 and her base period for determining unemployment insurance eligibility consisted of the 2008 calendar year.

(5)( Back ) Many of the petitioners referenced the employer's past practice of hiring them for work during their summer recess period, separate from the contracted 11 month work, performing various duties, including cleaning, and under a different payment system. The petitioners argue that when that work was not offered, they were at an economic disadvantage. While this limited work would not constitute school year employment, the commission will not remand this for computation. In particular, with only these wages in one quarter and all school year employment removed, the claimants would still be unable to establish a benefit year, see Wis. Stat. 108.04(4)(a) QUALIFYING CONDITIONS, which provides,

(a) A claimant is not eligible to start a benefit year unless the claimant has combined base period wages equal to at least 35 times the claimant's weekly benefit rate under s. 108.05 (1), including combined base period wages equal to at least 4 times the claimant's weekly benefit rate under s. 108.05 (1) in one or more quarters outside of the quarter within the claimant's base period in which the claimant has the highest base period wages.

(6)( Back ) In particular, the initial determinations explicitly address the findings with respect to the school year employee issue.