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


JILL A ZAMSKY, Employe

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98605001MW


On May 9, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit, but not for a reason allowing the immediate eligibility for unemployment insurance. The employe timely requested a hearing on the adverse determination, and hearing was held on August 13, 1998 in Milwaukee, Wisconsin before a department administrative law judge. On August 26, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked just under two weeks as an assembler for a client of the employer, a temporary help agency. Her assignment ended on April 7, 1998 (week 15), at which point she declined an assembly/packaging assignment for another client of the employer. The commission concludes that this was a quit by the employe, within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to the § 108.04(7)(a) quit disqualification. The commission therefore reverses the appeal tribunal decision.

The first issue is at what point the quit of employment occurred. The commission believes it occurred when the employe declined the assembly/packaging offer the employer made after the employe's first assignment with the employer ended. A quit of employment includes conduct inconsistent with an intent to continue the employment relationship, and a refusal of work falls within that category of conduct.

The next issue is whether the employe's quit was for a reason constituting an exception to the benefit disqualification of Wis. Stat. § 108.04(7)(a). The only possible relevant exception is Wis. Stat. § 108.04(7)(b), quit with good cause attributable to the employing unit. The commission does not believe the employe had good cause to refuse the assignment (and thus sever the employment relationship). The assignment was for work paying $6.25 per hour, which was $.25 per hour more than the employe had made at her first assignment for the employer. The commission therefore finds that, in week 15 of 1998, the employe voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to the benefit disqualification of that statute.

The administrative law judge, in finding the employe eligible for unemployment insurance notwithstanding the quit of employment, relied upon Wis. Stat. §§ 108.04(7)(e) and (9)(b). Section 108.04(7)(e) provides:

(e) Paragraph (a) does not apply if the department determines that the employe accepted work which the employe could have refused with good cause under sub. (8) and terminated such work with the same good cause and within the first 10 weeks after starting the work, or that the employe accepted work which the employe could have refused under sub. (9) and terminated such work within the first 10 weeks after starting the work.

Section 108.09(9)(b) of the statutes provides, in part:

(9) Protection of Labor Standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
. . .
(b) If the wages, hours (including arrangement and number) or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

The administrative law judge reasoned that the wages of the employe's first assignment were "substantially less favorable to the individual than those prevailing for similar work in the locality. The cut-off for a "prevailing" wage is $7.14 per hour, so the $6.00 per hour wage is "non-prevailing" under (9)(b). The administrative law judge then reasoned that, under (7)(e), the employe could have refused the assignment in the first instance. The employe's quit, however, had nothing to do with her first assignment with the employer. Rather, the quit occurred when the employe refused the assembly/packaging assignment paying $6.25 per hour. In Cornwell Personnel Associates, Ltd. v. Labor & Ind. Rev. Comm., 175 Wis. 2d 537, 499 N.W.2d 705 (1993), the court of appeals held that subsequent offers of work from a temporary help employer are not "new work" for purposes of Wis. Stat. §§ 108.04(7)(e) and (9)(b). Those provisions govern only the first assignment from a temporary help employer. For this reason, whether the wages, hours, or other conditions of the assignment the employe refused are substantially less favorable to the employe than those prevailing for similar work in the locality, is not relevant.

The commission also finds that the employe was paid benefits totaling $4,157.00, for weeks 15 through 35 of 1998, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission further finds that partial waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because part of the overpayment was the result of department error and did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f). Specifically, the appeal tribunal decision committed an error of law with regard to the point at which the quit of employment occurred. As a result, the recovery of benefits paid as a result of the appeal tribunal decision, $3,983.00, is waived. The employe must repay $174.00 to the Unemployment Reserve Fund.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 15 of 1998, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. She must repay $174.00 to the Unemployment Reserve Fund.

Dated and mailed: January 22, 1999
zamskji.urr : 105 : 1 BR 335.01  SW 844 VL 1025  VL 1080.268

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission has no dispute with the factual findings of the administrative law judge but believes, as indicated in the decision, that the administrative law judge erred in his analysis of when the quit of employment occurred.


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