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

SUSAN J WALDOCH, Employee

SCHOOL DISTRICT OF KETTLE
MORAINE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10607651WK

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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits based upon based upon wages paid for work performed in school year employment.

Dated and mailed December 17, 2010
waldosu : 150 : ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The adjudicator and ALJ found that the employee was a school year employee with reasonable assurance. The employee petitioned, arguing that a coworker, who was allegedly similarly situated but was found not to be a school year employee and was not subject to the reasonable assurance provisions that resulted in the employee's ineligibility for benefits during the 2010 summer recess.

Yet each determination of eligibility is separate and determined on its own merits, with its own appeal rights. Thus, the commission's review of the employee's appeal is not based upon the record of her co-worker's case, but on her own record. Pitt v. Family Dollar Stores of Wisconsin Inc. No. 882, UI Dec. Hearing No. 03611759MW (LIRC April 22, 2004) (citing Roach v. Labor and Industry Review Commission, Schneider National Carriers, Inc., Case No. 01-CV-919 (Wis. Cir. Ct. Washington County June 2, 2002)). Additionally, the commission rules provide at Wis. Admin. Code section LIRC 1.04, that review by the commission is on the record of the case including the synopsis or summons of the testimony or other evidence presented at the hearing.

The facts in this matter reflect the employee has worked 15 years as a school secretary for the employer, a school district. In the 2009-2010 academic year and years previous, the employee worked 11 months out of the year, staying one month longer than the students and arriving one month earlier than the students. Her employment contract called for 230 work days but also allowed her paid vacation days and holidays.

In May 2010, the employee was given assurance to return to work for the 2010-2011 academic year in her same capacity, earning the same hourly rate of pay but for a contract of 205 days, a 25 day reduction from her previous 230 day contract. The terms of the 2010-2011 academic year also differed in that the employee was no longer entitled to the 20 vacation days and 9 paid holidays she would have earned for the 2010-2011 academic year. She testified that in the 2009-2010 academic year, she had 17 earned paid days.

Department records reflect that on July 19, 2010 (week 30), the employee initiated a claim for unemployment insurance benefits, reporting that she had been laid off from work on June 30, 2010 (week 27).

Wis. Stat. § 108.04(17) provides that wages earned in school year employment cannot be used to qualify or pay benefits during regular non-work periods if the employee has reasonable assurance of similar work when school resumes. Specifically, the reasonable assurance provisions require the removal of base period school year employment wages from a claimant's computation of benefits when the claimant's work satisfies the criteria set forth in Wis. Stat. § 108.04(17); conversely, all school year base period wages should remain in the computation for benefits if reasonable assurance does not exist. Sarah J. Corona v. Kenosha Public School and Racine Unified School District, UI Dec. Hearing Nos. 06605019RC and 06605020RC (LIRC, April 13, 2007).

In order to decide whether a reasonable assurance analysis before and after the break is material, the base period services must be determined to be those in "school year employment." See Torrey Jr. v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC, April 27, 2007). In this case, since the claimant's services for the employer were not only in the base period but also before and after the summer recess, whether the claimant performed services as a school year employee for the employer is a prerequisite to determine whether applicable reasonable assurance provisions should be applied. (1)

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.

In determining whether an individual is a "school year employee", the commission does not limit its analysis to the final clause of the definition, "an employment contract which does not require the performance of services on a year-round basis." Instead, the commission finds the language "services to or on behalf of an educational institution" valuable based upon its analysis of the cases that have come before it and the development of these statutory provisions and their federal basis.

  In Suprenand v. Moraine Park Vocational Technical & Adult Education District, UI Dec. Hearing No. 02000535FL (LIRC September 19, 2002), the commission required more than just the quantitative analysis of the amount of work per calendar year, finding that an educational employee who worked 47 weeks of the year was "not a school year employee" because the employee's unemployment was not tied to any customary vacation or between terms period, she was not restricted to working during the school year and was not off work because of the employer's summer, holiday or other customary break period.

 In Wabnitz v. Oshkosh Public School, UI Dec. Hearing No. 03404679AP (LIRC July 20, 2004), the commission used the same approach, finding that the claimant was not a "school year employee" because:

the employee's services were not tied to the school district in an educational capacity (i.e. the services of officiating of adult basketball and adult softball games were for the employer's adult recreation department), and
those services were not tied "timing wise" to the school year.

  In Higgins v. Milwaukee Public Schools, UI Dec. Hearing No. 07604581MW (LIRC November 30, 2007), the commission refused to "split up" work into categories of "school year employment" and "not school year employment," where the employer did not negotiate separate contracts connecting certain positions to certain duties to the school year. It further found that all of the employee's work was not as a "school year employee" where it was performed in a capacity of "other than an instructional, research or principal administrative capacity" and where the employee's unemployment was not directly attributed to school recess but due to budget cuts and contaminated sites.

 In Engel v. Northcentral Technical College, UI Dec. Hearing No. 08201698EC (LIRC, October 31, 2008), the commission explained the "second factor" in determining whether an individual is a "school year employee" as

the "connection" or "integration" of the claimant's work with the employer's educational program or goals as it relates to the Wis. Stat. § 108.02(22m) language of providing "services to or on behalf of an educational institution."

The commission also noted in Engel that,

. . . given the claimant's services in the "other than" category, the language resulting in a denial of benefits should be strictly construed; Wis. Stat. § 108.04(17)(d) was an "opt in" provision from the federal public law. See Unemployment Insurance Program Letter No. 43-93 (UIPL 4-87), issued April 23, 1993. (Emphasis added).

The commission found in Engel that the services were not performed as a school year employee where, although the claimant worked 47 weeks per year and some of her services were connected with the employer's educational goals, some services were provided to the employer's community partnership programs and were unrelated to the employer's educational goals.

 In Schmidmayr v. City of Stevens Point, UI Dec. Hearing No. 09005412WR (LIRC June 10, 2010), the commission found that the employee's services as a bus driver for the City of Stevens Point were not in school year employment where the services were on behalf of the university but were not exclusive (i.e. the university routes allowed non students and the employee's driving services were "comingled" with regular year round municipal bus driving) and given the "strict" construction necessitated by the fact that the services were performed in an "other than capacity."

In this case, the commission finds that the employee is a school year employee subject to the reasonable assurance analysis because:

1. her services were clearly connected to the employer in its educational capacity, and
2. her services were not year round and, while her services extended beyond the actual school year, the work was still clearly connected (i.e. administrative services related to the beginning and ending of the school year).

Given the finding that the employee's services were performed as a school year employee, the final issue to be resolved is whether the changes in the 2010/2011 work assured of as of May were so significant as to find no reasonable assurance of "such services?"

In Leissring v. DILHR, 115 Wis. 2d 475 (1983), the Wisconsin Supreme Court held that the terms and conditions of the employment for the following year must be reasonably similar to those in the preceding year. Reasonable assurance is "assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance in making decisions related to employment and income." Bruce A Brookman, et. al. v. Milwaukee Public Schools, UI Dec. Hearing No. 89602703MWG (LIRC, May 9, 1990).

DWD 132.04 Educational employees: reasonably similar terms and conditions. (1) SCOPE. Under s. 108.04 (17) (a), (b) and (c), Stats., a claimant is ineligible for benefits based upon services provided to or on behalf of an educational institution for weeks of unemployment which occur between academic years or terms or during an established and customary vacation period or holiday recess if the claimant performed the services in the first such year or term or in the year or term immediately before the vacation period or holiday recess and if there is reasonable assurance that the claimant will perform such services for any educational institution in the year or term immediately following the academic year, term, vacation period or holiday recess. The Wisconsin supreme court has ruled that reasonable assurance exists if the terms and conditions of the employment in the academic year or term immediately following the weeks of unemployment which occurred between academic years or terms or during an established and customary vacation period or holiday recess are reasonably similar to those terms and conditions of employment which existed in the year or term before such weeks.

(2) STANDARD. Except as provided under sub. (3), the terms and conditions of the employment for which the claimant receives assurance from an educational institution under s. 108.04 (17) (a), (b) and (c), Stats., for the academic year or term immediately following the weeks of unemployment which occurred between academic years or terms or during an established and customary vacation period or holiday recess are reasonably similar if:

(a) The gross weekly wage is more than 80% of the gross weekly wage earned in the academic year or term which preceded the weeks of unemployment;

(b) The number of hours per week is more than 80% of the average number of hours worked per week in the academic year or term which preceded the weeks of unemployment; and

(c) The employment involves substantially the same skill level and knowledge as the employment in the academic year or term which preceded the weeks of unemployment.

In this case, the ALJ compared the work days to determine if the reduction was sufficient. He found it was not and the commission agrees. Specifically, the hours of work per week is more than 80% of the average number of hours worked per week in the academic year or term which preceded the reduction.

205/235=x/100
X = 93%

Additionally, if one treated the loss of paid days as a reduction in pay (i.e. the employee is working more days this academic year than the prior one), this reduction is also not significant enough; the gross weekly wage is more than 80% of the gross weekly wage earned in the academic year or term which preceded the weeks of unemployment.

For 2010-2011 academic year
$19.64 x 8 x 205 = $33,209.60

230 x 8 x 19.64 = $36,137.60 =total compensation for 2009-2010 year, however with paid time off, her salary was actually higher

i.e. $36,137.60/204(2) = 177
177/8=$22.14 (what her salary was per actual days worked)

19.62/22.14=x/100
X=88.6%

Since the changes in the employee's work terms from the 2009-2010 to the 2010-2011 academic year met the 80% standard set forth in the above code provision, the employee had reasonable assurance of "such services." The appeal tribunal decision is affirmed.



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uploaded 2011/01/14


Footnotes:

(1)( Back ) The applicable provision for this case is Wis. Stat. 108.04(17)(a) and it provides,

(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)( Back ) 230 days minus 26 paid days for vacation and holiday.