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

JONATHAN D BERENS, Claimant

WEST ALLIS/WEST MILWAUKEE
SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
 Hearing No. 10608131MW


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 first sentence of the FINDINGS OF FACT and CONCLUSIONS OF LAW section, the words "19 months" are replaced by "three years."

The fifth paragraph of the FINDINGS OF FACT and CONCLUSIONS OF LAW section is deleted.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the claimant is not eligible for unemployment benefits based upon the services performed for the putative employer during the time period at issue because these services were performed in excluded employment.

Dated and mailed December 3, 2010
berenjo . umd : 115 : 2

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The claimant (Berens) performed services for pay for the putative employer (School District) on a part-time basis beginning his freshman year, i.e., beginning in the 2007-2008 school year. During the time period relevant here, Berens attended Nathan Hale High School, which is a part of the School District.

Berens performed these services during the summer as a locker room attendant for the recreation program, and during the school year in the after-school program for elementary school students.

The positions in which Berens performed these services were first offered to junior and senior high school students, and then to high school students in lower grades, in the School District. Only if an insufficient number of these students applied did the School District hire graduates of the School District or students from other districts.

The issue is whether the services Berens performed for the School District were performed in covered employment.

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

(i) "Employment" as applied to work for an educational institution, except as such institution duly elects otherwise with the department's approval, does not include service:

1. By a student who is enrolled and is regularly attending classes at such institution; ...

(j) "Employment" as applied to work for a given employer, except as such employer duly elects otherwise with the department's approval, does not include service:

1. By an individual who is enrolled at a nonprofit or public educational institution which normally maintains a regular faculty and curriculum and normally has a regularly organized body of students in attendance at the place where its educational activities are carried on as a student in a full-time program, taken for credit at such institution, which combines academic instruction with work experience, if such service is an integral part of such program and such institution has so certified to the employer, except as to a program established by or on behalf of an employer or group of employers;...

The department determination stated that the services Berens performed for the School District were not performed in covered employment "because he was a student enrolled and regularly attending classes at an educational institution," and cited Wis. Stat. § § 108.02(15)(i) and (j). Because of the language used in the determination, it is apparent that the determination was based upon an application of Wis. Stat. § 108.02(15)(i), not 108.02(15)(j).

However, the department, in drafting the hearing notice, cited only Wis. Stat. § 108.02(15)(j).

Berens asserted at hearing and in his petition that he was, as a result, unprepared to address Wis. Stat. § 108.02(15)(i) at hearing. However, it is apparent from the focus of these assertions, as well as the circumstances present here, that what he is necessarily asserting is that he was unprepared to present any legal arguments as to 108.02(15)(i) at hearing. The relevant underlying facts, i.e., the nature of the services the claimant provided, his status as a student, and the relationship of these services to this status, would be the same regardless of whether the applicable exception were Wis. Stat. § 108.02(15)(i) or (15)(j). Moreover, Berens has failed to specify any evidence he would have provided at hearing had the (15)(i) exception been stated in the notice.

Berens has been provided full opportunity to present his legal arguments regarding Wis. Stat. § 108.02(15)(i) in his petition for commission review, and, consequently, further hearing in this matter is not merited despite the failure of the hearing notice to cite this statutory subsection.

Wisconsin Statutes § 108.02(15)(j) is not applicable here. Berens was not part of a work-study program, and the services he performed were not a degree requirement.

However, Wis. Stat. § 108.02(15)(i) does apply.

In Bachrach v. DILHR, 114 Wis. 2d 131 (Ct. App. 1983), the court clarified that the "regularly attending classes" language of Wis. Stat. § 108.02(15)(i) "is intended to differentiate between a person whose primary relation to the [educational institution] is as an employee but who also takes courses, and a person whose primary relation to the [educational institution] is as a student but who also is employed by the [educational institution]." See, also, Van Hoef v. Medical College of Wisconsin, Inc., UI Hearing No. 98603775MW (LIRC Dec. 9, 1998); Hong Zhang v. LIRC and UW-Madison, Case No. 98000504MD (Wis. Cir. Ct. Dane Co., Jan. 4, 1999).

Here, Berens' primary relationship with the School District was as a student, not an employee. During the time period at issue, he was a high school student who was offered the subject employment because of his status as a student in the School District. Consequently, the services he performed for the School District are excluded from the definition of employment by Wis. Stat. § 108.02(15)(i).

Berens argues in his petition that Wis. Stat. § 108.02(15)(i) does not apply to exclude his employment because "all of his responsibilities with the said employer DID include service." (emphasis in original) However, it is undisputed that the work performed by Berens for the School District constituted "services" for the elementary school children enrolled in the after-school program, and for those who used the locker room for School District recreational programs. The applicable distinction is not whether or not the work constituted the performance of services, but instead whether these services were performed by a student who was enrolled and regularly attending classes within the School District.

Berens also appears to be arguing that, because he was paid at least in part from program fees paid by parents and participants, he was not performing services for the School District. However, regardless of where the School District obtained its income in order to operate its recreational and after-school programs, the services performed by Berens were performed for the School District, which retained his services, supervised his work, and issued his paychecks.

Berens also argues in his petition that the School District's witness misrepresented the period of time for which he performed these services, i.e., she testified that he performed the services for 18 months when in fact he performed them for three years. However, this witness, the School District's Director of Human Resources, testified that she did not know specifically when Berens started working for the School District, but he had done so since his freshman year in high school. The commission's decision reflects the three years Berens performed the services at issue.

Finally, Berens addresses in his petition the circumstances surrounding the discontinuation of his services for the School District. However, that issue is not before the commission as a part of this matter.


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