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

JOHN E KEIST IV, Employee

CO-STAFF CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11003492MD


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 months at a client location as a pier installer for the employer, a temporary agency. That assignment ended on May 27, 2011 (week 22). On June 1, 2011 (week 23), the employee was offered a new position, which he refused.

After the first assignment ended, the employer called the employee and told him to call the office if he was interested in additional assignments. On June 1, the employer called the employee, and offered him another position. The position offered was as a wax coater at an industrial facility, earning $8 an hour. The employee refused the offer, saying that he "had something else in the works" at the time.

The primary issue presented in the case is whether, under the circumstances, the employee quit the employment or was discharged or laid off by the employer after the assignment ended.

The provisions in the administrative code relating to temporary help employers are found in Wis. Admin. Code § DWD 133 and are, in pertinent part, as follows:

DWD 133.02 Employment relationship. (1) CONTINUATION OF EMPLOYMENT RELATIONSHIP. When an assignment ends, the employment relationship between an employer and an employee shall be considered a continuing relationship if all of the following conditions are met:

(a) Prior to the end of the second full business day after the end of the assignment, the employee contacts the employer, or the employer contacts the employee, and informs the other that the assignment has ended or will end on a certain date. The department may waive the requirement for the deadline or notice, or both, if it determines that the employee's failure to so contact the employer was for good cause and the employer and employee have otherwise acted in a manner consistent with the continuation of the employment relationship.

(b) Prior to the end of the second full business day after the end of the assignment, or prior to the end of the first full business day after the date notice was given under par. (a) if the deadline for the notice was waived, the employer informs the employee that the employer will provide a new assignment that will begin within 7 days and any of the following occur:
1. The employer provides a new assignment that begins within 7 days of the date of the notice.
. . .

(c) 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).

(2) SEPARATION OF EMPLOYMENT BY EMPLOYER. If the employment relationship does not continue under sub. (1), the employment shall be considered separated by the employer unless the employee has voluntarily separated from the employment under sub. (3).

(3) SEPARATION OF EMPLOYMENT BY EMPLOYEE. (a) An employee voluntarily separates from the employment when any of the following occur:

1. The employee fails to notify the employer that an assignment has ended if the employer's policy requires the notification prescribed by sub. (1) (a) and the employee had notice of this policy prior to the end of the assignment, provided that the employer is not aware that the assignment has ended, and provided that the notice requirement was not waived under sub. (1) (a).

2. The employee refuses an assignment while the employment relationship continues.
. . .

In this case, the employee's assignment ended on Friday, May 27, 2011, and the employer contacted the employee at that time. May 28th and May 29th were weekend days, and Monday, May 30th was Memorial Day, a federal holiday. As a federal holiday, it would not be considered a business day. The employer offered the employee another assignment two business days later, on June 1, 2011. Therefore, the first two conditions of a continuing employment relationship under the administrative code are met.

The last condition, that the conditions of the new assignment meet the conditions under which the employee offered to work (as set forth in his written application for employment submitted prior to the first assignment), is also met. The employee's written employment application, Exhibit E1 in the record, does not indicate that the employee had any restrictions, including wage requirements, on conditions of work. If the conditions meet the conditions under which the employee offered to work in his written application, that is the end of the analysis and the employment is considered ongoing(1).

Therefore, as provided in the administrative code, the employee's refusal to accept the offer of work on June 1, 2011, while the employment relationship was ongoing, constitutes a quit of the employment. Generally, a quit results in a disqualification from benefits for four weeks following the week of the quit and until the employee requalifies for benefits by earning four times his weekly benefit rate in covered employment. There are statutory exceptions to that disqualification. However, quitting because one has "something else in the works" is not one of those exceptions.(2)

The commission therefore finds that, in week 23 of 2011, the employee terminated work with the employing unit within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason constituting an exception to that section.

Another issue is whether the employee erroneously received benefits, and if so, whether he is required to repay those benefits to the department.

Department records indicate, and the commission finds, that the employee was paid benefits in the amount of $363 per week for weeks 23 through 35, 39 through 46 and 47 of 2011 through 4 of 2012, amounting to a total of $11,616, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case was the result of departmental error, and not employee fault. The ALJ erroneously analyzed the matter as a failure to accept new work, and applied the labor standards provision to the employer's offer of work. However, pursuant to Wis. Admin. Code § DWD 133, the employment relationship was ongoing and the employee's refusal of the offered assignment was a voluntary termination, or quit. The employee was not offered new work, but ongoing work that met the conditions under which he had agreed to work for the employer.

The commission therefore finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), and the overpayment was the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is modified to conform to the above findings of fact and conclusions of law and, as modified, is reversed. Accordingly, the employee is ineligible for benefits beginning in week 23 of 2011, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $11,616 to the department.

Dated and mailed February 14, 2012
keistjo : 120 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on credibility.



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uploaded 2012/07/25


Footnotes:

(1)( Back ) Under the applicable code provision, the conditions of the job are not subject to a labor standards analysis if the work is continuing, but would be if it was an offer of new work.

(2)( Back ) There is an exception when an individual quits a job to take another job (covered by the unemployment insurance laws) that satisfies certain conditions, and the individual earns requalifying wages in that job. However, that is not the case here.