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

BETTY L LOWERY, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10603981MW


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 originally worked as a year round school secretary for the Milwaukee Public Schools. Due to budget constraints, the employee was notified that her position would be moved from a year round 12-month position to a 10-month position with her first day of work for the 2009-2010 academic year being August 3, 2009.

At issue is the employee's eligibility for benefits during weeks 14 and 15, 2010, the calendar weeks ending April 3 through 10, 2010, the Spring break recess; department records reflect that for that claim, her base period consisted of the 2008 calendar year.(1)

Wis. Stat. § 108.04(17)(a) and (g) provide,

(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 there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term; or
2. During the period between 2 regular but not successive academic terms, when an agreement between an employer and a school year employee provides for such a period, if the school year employee performed such services for any educational institution in the first such term and if there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such term.

(g) A school year employee of an educational institution who performs services as described in par. (a) or (d) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed such services for any educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will perform the services described in par. (a) or (d) for any educational institution in the period immediately following the vacation period or holiday recess.

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.

The employer did not appear for the hearing. Department records reflect that based upon the employee's initial claim in the summer of 2009, her base period for her Spring break claim consisted of the calendar year of 2008. During the base period, the employee was not employed as a school year employee but as a year round employee.

Thus, although the administrative law judge applied the reasonable assurance provisions, there was no need to do so. Specifically, given the lack of any "school year employment" wages within the employee's base period, any finding of reasonable assurance is moot. In particular, the effect of a reasonable assurance finding is that all school year employment, "such service", is removed from the base period which benefits are computed. With no school year employment in the base period, a finding of a reasonable assurance, if made, does not change the employee's benefit computation. See Torrey v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC April 27, 2007).

The commission therefore finds that in of weeks 14 and 15 of 2010, the reasonable assurance provisions found at Wis. Stat. § 108.04(17)(a) and (g) are not applicable as the employee has no school year employment in her base period.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in weeks 14 and 15 of 2010, if otherwise qualified.

Dated and mailed August 27, 2010
Lowerbe2 : 150 ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge prior to reversing the decision in this matter. The commission's reversal is based upon the fact that the employee's base period for the week 14 and 15 claim, did not contain school year employment.



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uploaded 2010/09/10


Footnotes:

(1)( Back ) The employee initiated a claim for unemployment insurance benefits on July 1, 2009 (week 27of 2009); this claim was active through week 26 of 2010.