KIMBERLY J HAEFNER, Employee

JACKSON HEWITT TAX SERVICE, 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 worked for one season as a tax preparer for the employer, a tax preparation business. She entered into a written contact with the employer to perform services from January 2 through April 15, 2009. She fulfilled the terms of the contract and her employment ended effective April 15, 2009 (week 16). The employee then filed a claim for unemployment insurance benefits and the employer did not contest her eligibility for benefits.

In October of 2009, the employer contacted the employee inquiring about her interest in returning for the 2010 tax season. When the employee indicated her willingness to do so, the employer informed her that, as a prerequisite, she would have to take and pass the employer's examination no later than January 15, 2010 (week 3). The employee had taken and passed an examination for her prior services for the employer.

During week 2 of 2010, the calendar week ending January 9, 2010, the employer's office manager asked to meet with the employee to schedule a date for her to take the exam. During that discussion, the employee informed the employer that she had applied for Social Security Disability benefits and raised the issue of her availability to work for the employer if such benefits were awarded to her during the tax season. The employer told her that the determination was up to the Social Security Administration. Because the employee did not take the employer's examination by the January 15 deadline, she was not eligible to work as a tax preparer for the employer in 2010.

The issue to be decided is whether the employee's failure to take the exam constituted a separation of employment, or a refusal to accept work.

While the initial determination in this matter found the employee voluntarily terminated her employment with her refusal to take the examination by the January 15 deadline, there was no employment relationship for the employee to sever as of that time. In particular, the employee had been indefinitely laid off on April 15, 2009 (week 16).

Next, although the administrative law judge found that the employee's refusal to take the employer's examination by January 15, 2010 was refusal of an offer of work, the commission disagrees. In particular, the employer's offer of work was contingent upon the employee's passing of its tax preparer test. In Miller v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 05602067MW (LIRC August 16, 2005), the commission explained, that

[F]or an offer of work to be considered bona fide, it should be of such definite character that nothing more than a simple acceptance is necessary to form a contract of hire." K & H Construction, Inc. v. Ind. Comm. and Severson, Case No. 124-118 (Dane Co. Cir. Ct., March 8, 1968); Christine L Schuele v. Cornwell Personnel Associates LTD, UI Hearing No. 03002139WK, (LIRC January 30, 2004). A bona fide offer is one that is complete and requires no action on the part of the employee to complete it. Webber v. PA Staffing Services, Inc., UI Hearing No. 99601291MW (LIRC June 9, 1999).

Thus, the based upon the exam contingency, the offer was not a bona fide offer of work and, as such, the employee did not fail to accept an offer of work.

However, in order to be eligible for unemployment insurance benefits, a worker must be able to work and available for work. See Wis. Stat. § 108.04(2)(a)1. Thus, the final issue is whether as of week 3 of 2010, the employee was able to work and available for work.

Wis. Administrative Code § DWD 128.01(4) provides, in relevant part:

(4) AVAILABLE FOR WORK. (a) Withdrawal from labor market. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant's labor market area. During any week, a claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. . .

In determining whether a claimant has withdrawn from the labor market, a claimant "is considered to have withdrawn from the labor market if he or she places other unreasonable restrictions on working conditions." See Wis. Admin. Code § DWD 128.01(4)7.

As of week 3 of 2010, the employee was not willing to take the test for possible employment with the employer because of her pursuit of Social Security Disability benefits and her concern about the effect work would have on her eligibility for those benefits. Her actions were sufficient to establish that as of week 3 of 2010, the employee withdrew herself from the labor market.

The commission therefore finds that in week 16 of 2009, the employee did not voluntarily terminate her work with the employer, within the meaning of Wis. Stat. § 108.04(7)(a) but was discharged and her discharge was not for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that in week 3 of 2010, the employee did not fail without good cause to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a).

The commission finally finds that as of week 3 of 2010, the employee was not able to work or available for work within the meaning of Wis. Stat. § 108.04(2)(a)1 and Wis. Admin. Code § DWD 128.01(4).

The appeal tribunal decision is modified to conform with the above findings and as modified, is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 3 of 2010 and until the employee establishes that she is again able to work and available for work.

Dated and mailed July 30, 2010
haefnki . urr : 150 : 1 SW 845.03 AA 230.11 AA 247 AA 267

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not confer with the administrative law judge prior to issuing this modified decision. Specifically, the commission's modifications are based upon a differing legal conclusion not a differing version of the facts.

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uploaded 2010/09/10