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

PEDRO A CARDENAS, Employee

SEEK CAREER STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11401111AP


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 eligible for benefits beginning in week 5 of 2011, if otherwise qualified.

Dated and mailed November 29, 2011
cardepe . usd : 132 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employee failed to accept an offer of work from the employer with good cause. The employer asserts that the employee's failure to accept the work indicated his intent to quit his work. However, under ch. DWD 133 the relationship between an employee and a temporary help employer continues if the employer offers the employee work assurance and work within two business days of the end of the 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 is limited to employment relationships in which the conditions of work the employee is willing to accept are set forth in a written application. There is no evidence of a written application in this case. Therefore the employment relationship ended when the employee's last assignment ended.

The canvassing period applies if the job offered is of a lower grade of skill or significantly lower rate of pay than applied to the employee in one or more of the employee's more recent jobs. The employee's most recent job was as a machine operator. He was offered work as a general laborer. The employer conceded at the hearing that the offered job was not as skilled as the employee's most recent position. Further, while the employer asserts that the COED shows the positions were of the same skill, it does not. A machine feeder is not the same as a machine operator. The employer did not testify that the employee worked as a machine feeder. It testified that he was a machine operator. Finally, the offer of $10 per hour was more than an 80% decrease from his most recent rate of pay and therefore would constitute a significantly lower rate of pay further providing the employee with good cause for refusing the employer's offer.

 


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