MICHELLE K ARNDT, Employee

MEDICAL STAFFING NETWORK INC, 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 filed a claim for benefits on January 28, 2009 (week 5).

The issue is whether the employee is eligible to establish a benefit claim based upon the services she performed for the employer during the base period at issue

The employee began performing services for the employer as a certified nursing assistant (CNA) in 2001.

The employee performed these CNA services until the end of 2008 in Wisconsin at the Brown County Mental Health facility in Green Bay, Manitowoc County Health Care facility, Whispering Pines facility in Peshtigo, and Grancare Nursing Center in Green Bay.

During 2007 and 2008, the employee lived in Michigan and commuted to Wisconsin to perform the CNA services. She would work as many as 32-40 hours from Friday through Sunday, staying with relatives in Green Bay.

During 2007, the employee also began performing scheduling services for the employer, scheduling nurses for the employer's Green Bay office in the evening from her home in Michigan.

During the last six months of 2008, the employee began, for 40 hours each week on weekdays during regular office hours, scheduling physical, occupational, and speech therapists for the employer's Green Bay office, generally from her home but occasionally from the Green Bay office. During this period of time, the employee continued performing nurse scheduling services for the employer in the evenings, generally from her home in Michigan.

In August 2008, the employee began scheduling nurses for the employer's Madison office as well as its Green Bay office during the evenings from her home in Michigan.

In January 2009, the Green Bay office closed, and the employee ceased performing CNA or therapist scheduling services for the employer as a result, and began performing nurse scheduling services solely for the Madison office.

As of September 2010, the employee was continuing to perform nurse scheduling services for the employer's Madison office.

The employee initiated a Wisconsin claim for partial benefits on January 28, 2009. The employee lived in Michigan at that time. When asked whether she worked outside of Wisconsin, the employee answered "no."

In order to qualify for benefits, the employee is required to have performed services for the employer in a Wisconsin employment during the applicable base period, i.e., the fourth quarter of 2007, and the first three quarters of 2008.

During those quarters, the employee performed services for the employer as a CNA in Wisconsin; nurse scheduling services, generally from her home in Michigan; and therapist scheduling services, generally from her home in Michigan but on occasion from the employer's Green Bay office.

Wisconsin Statutes § 108.02(15) provides as follows, as relevant here:

(a) "Employment", subject to the other provisions of this subsection, means any service, including service in interstate commerce, performed by an individual for pay.

(b) The term "employment" shall include an individual's entire service performed within, or partly within and partly outside, Wisconsin, if such service is "localized" in Wisconsin; and shall also include such service, if it is not "localized" in any state but is performed partly within Wisconsin, and if:

1. The base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in Wisconsin; or

2. The base of operations or place from which such service is directed or controlled is not in any state in which some part of such service is performed, but the individual's residence is in Wisconsin.

(c) An individual's entire service for an employer, whether performed partly within or entirely outside Wisconsin, shall be deemed "employment" subject to this chapter, provided both the following conditions exist:

1. Such service is deemed "employment" covered by this chapter pursuant to a reciprocal arrangement between the department and each agency administering the unemployment insurance law of a jurisdiction in which part of such service is performed; or no contributions are required with respect to any of such service under any other unemployment insurance law; and

2. The employer so elects with the department's approval and with written notice to the individual.

(d) An individual's entire service shall be deemed "localized" within a state, if such service is performed entirely within such state, or if such service is performed partly within and partly outside such state but the service performed outside such state is incidental to the individual's service within such state (for example, is temporary or transitory in nature or consists of isolated transactions).

The statutory provisions cited above are derived from a uniform law, the provisions of which have been adopted in most states. Gilbert v. LIRC and DWD UI Division, 2008 WI App 173, 315 Wis. 2d 726, 762 N.W.2d 671. See, also, Broyhill Furniture Industries, UI Hearing No. S0100223MD (LIRC Oct. 24, 2003), aff'd sub nom. Broyhill Furniture Industries, Inc. v. Jim Haugen, LIRC, and DWD, Case No. 03-CV-3585 (Wis. Cir. Ct., Dane Co., March 24, 2005). This uniform law, including the version adopted in Wisconsin, specified the following tests, to be applied consecutively, in the indicated order of preference, to determine the state with which the employment had the most substantial contacts:

(1) the place where the work is "localized;"
(2) the situs of the "base of operations;"
(3) the situs of the "place from which such service is directed or controlled;"
(4) the situs of the employee's residence.

The first question then is whether the services performed by the employee for the employer during the base period were "localized" in Wisconsin or in Michigan.

The test articulated in Wis. Stat. § 108.02(15)(d) is whether the services performed by an individual outside a particular state are incidental to those performed within such state, e.g., are temporary or transitory in nature or consist of isolated transactions.

Since neither the scheduling services the employee performed from her home in Michigan, nor the CNA and scheduling services she performed in Wisconsin would reasonably be considered temporary, transitory, or isolated, her services were not localized in either Wisconsin or Michigan. Each type of service was performed by the employee as a regular part of her work for the employer during the base period. The employee was routinely scheduled for as many as 32-40 weekend hours as a CNA in four Wisconsin facilities; she regularly performed nurse scheduling duties during weeknight evening hours from her home in Michigan; and, during the third quarter of 2008, part of her assigned responsibilities included scheduling therapists during regular weekday office hours, generally from her home in Michigan but on occasion in the employer's Green Bay office.

The next question then is whether the employee's base of operations was in Wisconsin or Michigan.

The record here does not establish that the employee had a single base of operations. She performed a significant amount of her work from her home in Michigan, as well as a significant amount in Wisconsin, commuting or staying with relatives when she did so. Gilbert, supra. (construction workers who performed services at sites in Wisconsin and Illinois did not have a single base of operations in either state).

The next question then is whether the employee's services for the employer were directed and controlled from Wisconsin. In the commission's opinion, they were.

The focus of this test is upon the place from which the entire service of the employee during the base period is directed and controlled, and not upon the place from which any particular project is directed and controlled. Gilbert, supra.

The employee's services were controlled from both the employer's Green Bay office, and, to a lesser extent, its Madison office, both located in Wisconsin. Although the employee's paychecks were issued from the employer's corporate headquarters in Florida, the record does not show that the employee's services were assigned or directed from that location. Moreover, the fact that the employer may have reported the employee's wages for unemployment insurance purposes to Michigan rather than to Wisconsin is not material to the determination of whether the employee's work during the base period constituted Wisconsin employment within the meaning of Wis. Stat. § 108.02(15). See, Broyhill, supra.

The ALJ found that the services the employee performed for the employer during the base period did not constitute employment in Wisconsin because the employee failed to offer any "specific dates or documentation showing work in Wisconsin." However, the employee testified as to the months during which she performed particular tasks for the employer, as well as the locations in which these tasks were performed, and this testimony is competent and unrebutted.

Accordingly, during the base period at issue, the services performed by the employee for the employer were performed in a Wisconsin employment, within the meaning of Wis. Stat. § 108.02(15), and the employee is eligible to establish a benefit claim based on this employment as of week 5 of 2009.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible to establish a benefit claim based upon the services she performed for the employer during the base period at issue, and is eligible for benefits as of week 5 of 2009, if otherwise qualified.

Dated and mailed November 12, 2010
arndtmi . urr : 115 : 1 ET 495

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2011/01/14