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

BARBARA E MATZ, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10612095MW


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 worked as a teacher for the employer, the Milwaukee Public Schools from 1985 until her retirement in 2001. She testified that in 2001, she started performing services as a substitute teacher for the employer. She was laid off in June 2010 but was called in October 2010 to return to substitute work, earning $16.54 per hour. She testified that each day of teaching was at a different school, with the hours of the week varying depending upon how often she was called. No testimony was elicited as to the manner by which the employee would be contacted (i.e. from a substitute list), whether the means of contact changed or how many days the employee worked before the week of Thanksgiving, the calendar week ending November 27, 2010 (week 48), in comparison to after week 48.

During the week of Thanksgiving (week 48), the employee worked Monday, November 22nd. Because of the holiday, school was not in service on Thursday and Friday, November 25th and 26th. The employee had been asked to work on Tuesday and Wednesday, November 23rd and 24th that week but did not do so because she injured herself at work on Monday and was unable to work the remainder of the week. (1) While the ALJ did not specifically ask about the employee's return after the injury, the employee noted on the determination (marked as part of Exhibit 1) that she was "back" on the 29th (the next Monday).

Department records reflect that the employee had been filing for and receiving unemployment insurance benefits beginning in the calendar week ending June 12, 2010 (week 24). She filed for benefits for week 48 of 2010 reporting wages of $132.32 that week.

The issue before the commission is whether, in week 48 of 2010, the employee was a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(g).

Wis. Stat. § 108.04(17)(g) provides, as follows:

A school year employee of an educational institution who performs services as described in par. (a)[(2)] or (d)[(3)] 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 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.

Wis. Stat. § 108.02(22m) provides that a:

"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 performance of services on a year-round basis.

The employee's services were performed as a "school year employee," within the meaning of the above; she was employed by and her services were on behalf of an educational institution and the services were not performed on a year-round basis.

Additionally, while the employee worked partially for the employer and was paid for work in that week, the commission finds that week 48 was still a "week of unemployment" within Wis. Stat. § 108.04(17)(g). Specifically, in Brookman et al., v. Milwaukee Public School, UI Dec. Hearing No. 89603455MWG (LIRC August 27, 1990), the commission defined "any week of unemployment which occurs during an established and customary vacation period or holiday recess" as "any calendar week in which some period of unemployment occurs during an established and customary vacation period or holiday recess."(4)

At the hearing and in the petition, the employee attempts to argue that because she was injured, the reasonable assurance questions did not seem to apply to her. The commission finds that the employee's medical restrictions do not affect (or remove) the application of the reasonable assurance provision to her because:

(1) the Wisconsin statutory language does not require the "unemployment" in the week of the break to be "solely" due to the break, see Wis. Stat. § 108.04(17)(g) which uses the language of "unemployment which occurs during an established and customary vacation period or holiday recess," and

(2) the employee's position approach would be inconsistent with commission decisions dealing with interpreting a "week of unemployment" in the reasonable assurance context. See, Rosenbaum v. Ottawa University, UI Dec. Hearing No. 09605676MW (LIRC November 19, 2009) (finding that despite the fact that the employee worked his normal schedule in the week of Thanksgiving, it was still a "week of unemployment" and subject to application of the reasonable assurance provisions; the commission found such application was consistent with the underlying policy of not subsidizing school employees during customary or agreed to vacation periods.)

Thus, the next step in determining whether reasonable assurance applies to disqualify the employee for benefits based upon services as a "school year employee" is whether the employee's services before and after the Thanksgiving recess were the same.(5)

Wis. Admin. Code § DWD 132.04 provides guidance as to what is reasonably similar. While the code section does not specifically reference Wis. Stat. § 108.04(17)(g) it does reference an "established and customary vacation period or holiday recess," which is the claimant's situation in week 48 of 2010. The standard set forth in Wis. Admin. Code § DWD 132.04(2) is to treat the terms and conditions of the work as 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 establishing reasonable assurance, employers have the burden to present evidence showing that the opportunity to teach in the upcoming school year will be similar to the opportunity in the prior year; in substitute teaching settings such evidence "includes the number of substitutes the employer anticipates needing, how many substitutes it has to select from, and how substitutes are selected." See Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC 9/3/1999). Yet, the employer did not appear at the hearing in this matter. The ALJ also did not ask the employee whether her opportunity to work after the break was the same as it had been before the break, what the method of selection of substitutes was, if it had changed or even how many days the employee worked before or after the break. As such, the commission finds that reasonable assurance was not established.

The commission therefore finds that the employee performed services in an instructional, research, or principal administrative capacity, for an educational institution during an academic year or term, but that in week 48 of 2010, the employee did not have reasonable assurance of performing such services again in the period immediately following the holiday recess, within the meaning of Wis. Stat. § 108.04(17)(g).

DECISION

The decision of the administrative law judge is reversed. Accordingly, in week 48 of 2010, the employee is eligible for benefits based upon wages paid for work performed as a school year employee.

Dated and Mailed April 29, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not the result of a differing assessment of witness credibility but based upon a differing legal conclusion upon what the record established.



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uploaded 2010/06/03


Footnotes:

(1)( Back ) The employee's testimony reflects clear confusion about whether she was to or did receive worker's compensation for this period; this is a separate issue in terms of her eligibility for benefits for that week.

(2)( Back ) Wis. Stat.  108.04(17)(a) deals with a school year employee's "services in an instructional, research or principal administrative capacity."

(3)( Back ) Wis. Stat.  108.04(17)(d) deals with a school year employee's "services other than in an instructional, research or principal administrative capacity." 4

(4)( Back ) At the time of the Brookman decision, the applicable statutory section was numbered Wis. Stat. 108.04(17)(c).

(5)( Back ) Also, in Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991), "such services" was also interpreted as the services that initially qualified the employee for benefits, namely, the base period services. Given this, if reasonable assurance were to be found before and after the week at issue, the commission must also determine how the employee's services before and after the week 48 recess compare with her base period services.