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

ZORAIDA BELEN, Employee

BEL RESOURCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09609478MW


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 modifications:

In the final sentence of the fifth paragraph after the FINDINGS OF FACT and CONCLUSIONS OF LAW, delete the date "August 27" and substitute therefor: "August 28."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed May 5, 2010
belenzo . umd : 145 : 6 VL 1025 MC 626

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer argues that it did not initiate the ending of the employee's employment. The employer notes that the employee, when she originally filed her claim, indicated that she quit working for the employer. However, the parties' characterizations of the separation are not controlling for unemployment insurance purposes. While the employee may have believed that she quit the adjudicator, when applying the law to the facts in the employee's case, correctly determined that the employee was discharged.

The employer argues that the ALJ's finding that the employer and the employer's client contemplated from the beginning of the employment relationship that the employee would work for the client at some point in time is not supported by the record. The employer testified that the employee originally applied for work at the client and was referred to the employer by the client so the employer could have her fill out an application to work for the client, through the employer. Further, the employer explained that in this case, the client was giving the employee a try, and the employer "just ran them through us for a period of time until they hire the specific individual." While the employer did not specifically state that it and the client contemplated from the beginning that the employee would work for them, the ALJ made a reasonable inference based on the facts in this case.

The employer further argues that not all workers are hired by the clients, even if those clients at one time considered the workers as candidates for permanent employment. However, it is not the potential for future employment that is critical in this case. The reason that the employee is not considered to have quit is because the client hired the employee permanently and the employer had not made the employee aware that she could refuse to accept the permanent position and continue working for the employer. The employee may well have been hoping, from the start of her employment with the employer, to get a permanent job with the client. However, in this case the employee was never made aware that she could have continued working for the employer instead of becoming an employee of the client.

The commission agrees with the employer's assertion that the employee came to work on August 28, rather than August 27 and has modified the appeal tribunal decision to reflect this. The employer argues that the employee came in to pick up her check on August 28, at which time she noticed it was less than she expected and asked the reason for this. The commission concludes that the ALJ did not mean that the employee went to the office specifically to ask about the size of her check. Further, the important point is that the employee's actions in questioning the size of her check suggest she did not realize she had been hired by the client, or she would have realized why her check was smaller than expected. The employer argues that the ALJ's inference in this case is incorrect because the employee actually was only surprised that she was hired in the middle of the pay period, but she knew in advance she was going to be hired by the client. It is plausible that the ALJ drew an incorrect inference from the facts. Certainly, there may be multiple reasons for the employee to question the size of her check. However, the acceptance of a position with a client is not a quitting unless the worker has been apprised by the temporary help employer that the worker can continue in its employ rather than beginning work with the client.

The employer further argues that its application required the employee to notify the employer as soon as her job assignment is completed. The employer argues that the employee was aware when the client hired her that her work with the employer had ended, yet she did not contact the employer to request assignments. However, the employer had the responsibility of ensuring that the employee understood that she could continue working for the employer if she refused to take a job with the client. This is particularly true when the employee was hired with the assumption that she would become a permanent worker of the employer.

The employer finally argues that this case has a very similar fact situation to that in J. Kempf v. Seek, UI Dec. No. 98402979GB, (1998). To the extent that Kempf conflicts with the commission's decision in the present case, the commission's decision controls. In the past, the commission has frequently addressed the issue of whether an employee who begins working for a temporary help employer, and later transfers to employment with the client of the employer has quit. The commission's decisions rely on whether or not the employee had a choice to continue in the temporary help employment and whether the employee had been informed that she had such choice. In Vicki J Budd v. A Life Style Service, Inc., UC Hearing No. 96-400238AP (LIRC May 10, 1996), the commission found that the employee quit her employment where the employee acknowledged that she could have continued working for the employer by turning down the offer of permanent work. The commission reached a similar result in Kathleen Vanden Berg v. Trinity Resource Corp., UC Hearing No. 95-605562MW (LIRC Dec. 26, 1995). In Vanden Berg the commission noted that the employer was willing to continue the employee's employment if she had not been hired by the client and therefore it was the employee's decision to sever the employment relationship. On the other hand, in Vanessa R. Luster v. A Life Style Service, Inc., UC Hearing No. 96-604265MW (LIRC Sep. 20, 1996), the commission distinguished the cases of Budd and Vanden Berg by noting that in Luster it was understood at the time of hire the employee would be eventually hired by the employer. The commission further stated:

"Unlike the prior cases, the testimony in this case did not establish that the employer was willing to continue her employment if she declined to be hired on a permanent basis by the client. The employer did not indicate that the employee could have continued working for it. Further, even if it were found that the employee could have continued working for the employer, there was no testimony that the employee was aware that she had that option. This distinguishes the present case from the prior cases decided by the commission."


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