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


JANET S HOLCOMB, Employe

ADVANTAGE HEALTH CARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004031MD


On September 30, 1998, the Department of Workforce Development issued an initial determination in the above-captioned matter which held that in week 36 of 1998 the employe was not, with due notice, called upon by her current employer to perform work actually available. The employer filed a timely hearing request and a hearing was held before an appeal tribunal. On November 3, 1998, the appeal tribunal issued a decision which affirmed the initial determination. The employer filed a timely petition for commission review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for the employer, a temporary employment agency specializing in the medical field, as a certified nursing assistant. In addition, the employe also worked for another employment agency, Visiting Nurse Association, which she considered to be her primary employer. The employe performed approximately 24 hours of work each week for Visiting Nurse Association, working assorted days from approximately 11:00 a.m. until 3:30 p.m. at a pay rate of $7.25 per hour. The employe then performed work for the employer on days when she was not scheduled to work for Visiting Nurse Association. The employer paid her $11.00 per hour.

On or about August 3, 1998, the employer offered the employe eight hours a day of work on August 30, August 31, September 1, September 2, September 3 and September 5. The employe was scheduled to work for her other employer on September 2, September 3 and September 5, but agreed to work for the employer on September 1.

On August 26, 1998, the employe notified the employer that she could not work for it on September 1 because she was attending school that day. The employe indicated that she was available for work on September 4, and the employer agreed to schedule her on that date instead. The employe worked 8 hours on September 4 and earned $88. She worked no other day for the employer during week 36 of 1998.

Wisconsin Statute § 108.04(1)(a) provides, in relevant part:

"An employe's eligibility for benefits shall be reduced for any week in which the employe is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employe would have earned as wages for that week in such available work as wages earned by the employe and shall apply the method specified in s. 108.05(3)(a) to compute the benefits payable to the employe. The department shall estimate wages that an employe would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employe."

The first question to be decided is whether the employe was with due notice called on by her current employing unit to report for work actually available during week 36 of 1998, and whether the employe was available for that work.

The employer notified the employe that it had work available for her on August 30 and 31, and on September 1-5 of 1998. Thus, the employe could have worked for the employer every day during week 36 of 1998. Although the employe was not scheduled to work for her other employer on August 30 and 31, she nonetheless did not accept work with the employer on those days. In addition, the employe was unavailable for suitable work with the employer on September 1 because she was attending school that day. While the employe later substituted a different day of work for the employer, the fact remains that the employer also had work available for her on September 1, which she was unavailable to perform for personal reasons.

The employer also had work available for the employe on September 2, September 3 and September 5, days on which the employe was committed to work for a different employing unit. Although the employe may have made a valid personal decision to perform work for Visiting Nurse Association on those days rather than accept the work the employer had available for her, the statute does not contain any "good cause" exception where an employe's refusal to perform work available is for valid reasons. Moreover, the employe's decision to work part-time at $7.25 an hour for another employing unit rather than full-time at $11.00 an hour for the employer rendered her underemployed during the week at issue, and the employe cannot reasonably expect to make such a choice without sustaining any benefit reduction as a result. Because the employe had due notice of work available, but was unavailable for some of that work, the provisions contained in Wis. Stat. § 108.04(1)(a) are applicable.

The next question to decide is the amount of additional wages the employe would have earned had she performed all of the available work in week 36 of 1998.

The record establishes that the employer had 8 hours of work available for the employe every day in week 36. Had the employe performed all of this work, she would have earned $88 per day, or $616 for the week. Assuming a 40-hour work week, the employe would have earned $440. Wages in this amount would render the employe ineligible for partial benefits.

The commission therefore, finds that in week 36 of 1998 the employe was with due notice called upon by her current employing unit to perform work actually available and was unavailable for or unable to perform such work, within the meaning of Wis. Stat. § 108.04(1)(a).

The commission further finds that, had the employe performed all of the work available to her in week 36 of 1998, she could have earned wages totaling at least $440 in that week. Those wages result in no weekly benefit entitlement for week 36 of 1998, within the meaning of Wis. Stat. § 108.02(26) and § 108.05(3).

The commission further finds that the employe was paid benefits in the amount of $92 for week 36 of 1998 for which she was not eligible within the meaning of Wis. Stat. § 108.03(1), and to which she was not entitled. Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund. Waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe's benefits for week 36 of 1998 shall be reduced by the wages she would have earned had she performed all of the work available to her in that week. She is required to repay the sum of $92 to the Unemployment Reserve Fund.

Dated and mailed: January 15, 1999
holcoja.urr : 164 : 1  AA 110

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission's decision to reverse the appeal tribunal decision is not based upon an assessment of the credibility of the witnesses in this case, but is the result of a differing interpretation and application of the unemployment insurance law under essentially the same set of facts as that found by the appeal tribunal.

cc: ADVANTAGE HEALTH CARE INC


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