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

JOSEPH A PIOTROWSKI, Employee

SITE STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11606826MW


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 for two and a half months as a blender for the employer's client, a spice company. The employer is a staffing agency. His last day of work was June 9, 2011 (week 24).

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

On June 9, 2011, the employee was discharged from his position as a blender because he was not meeting the worksite's quality inspection expectations. However, the employee learned that he had lost this position as a blender from the employer who called the employee and informed him of this on June 9, 2011. On the same day, the employer informed the employee that another job placement had been secured for him with another worksite working at a higher rate of pay with a manufacturing company located in Waukesha, Wisconsin. The employee declined the job offer given to him from the employer and told the employer that he was not willing to work in Waukesha because of the distance. The employee went on to state that he was only willing to travel to work within a seven mile radius of his home. The employer was unaware of any travel restriction at the time the employee was hired. The employer informed the employee that there were no positions available meeting such travel restrictions and as such the employment relationship ended.

The employer submitted the employee's written application at the hearing. The application indicates that the employee has a car. It does not indicate how far the employee would be willing to travel to work.

The ALJ states that under Wis. Admin. Code § DWD 133.02 the employment relationship continues if the employee notifies the employer that the assignment has ended or the employer notifies the employee that the assignment has ended, the employer provides work assurance within two business days after the end of he assignment, and:

The assignment offered by the employer meets the conditions under which the individual offered to work, including the type of work, rate of pay, days and hours of availability, distance willing to travel to work, and available modes of transportation, as set forth in the individual's written application for employment with the employer submitted prior to the first assignment, or as subsequently amended by mutual agreement. The employer shall have the burden of proof to show that the assignment meets the requirements of this paragraph. If the employer offers an assignment that does not conform to the requirements of this paragraph, the employment relationship ends under sub. (2).

Wis. Admin. Code § DWD 133.02(1)(c).

Chapter DWD 133 provides that the employment relationship continues if the employer offers the employee work that meets the conditions set forth in a written application, including the distance the employee is willing to travel to work and available modes of transportation. The employment application in this case did not list the distance the employee was willing to travel. The employer therefore did not meet its burden of establishing that it offered work meeting the conditions under which the employee agreed to work. Since the written application does not include distance willing to travel, and the distance to the job was the reason for refusing the assignment, the employment relationship is considered to have been ended by the employer under Wis. Admin. Code § DWD 133.02(2).

The commission therefore finds that in week 24 of 2011, the employer discharged the employee but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 24 of 2011, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed January 19, 2012
piotrjo . urr : 132 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The commission has accepted the ALJ's factual findings. The ALJ reasoned that under Wis. Admin. Code § DWD 133.02 the employment relationship continues if both of the following conditions are met: the employee notifies the employer that the assignment has ended and the employer provides work assurance within two business days. However, the ALJ did not consider the requirements set forth in Wis. Admin. Code § DWD 133.02(1)(c).

 


Appealed to Circuit Court.  Appeal dismissed, April 27, 2012.

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


uploaded 2010/04/26