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

RANDI R RONDORF, Employee

MARATHON COUNTY CHILDREN WITH
DISABILITIES EDUCATION BOARD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11202505EC


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, except that it makes the following modification:

1. Delete the final sentence of the sixth paragraph under the "FINDINGS OF FACT and CONCLUSIONS OF LAW."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for unemployment insurance benefits based upon her employment with the employer.

Dated and mailed February 3, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer petitioned the appeal tribunal decision, arguing that the reasonable assurance denial provisions should apply to the employee's claim for benefits during the recess between the 2010-2011 and the 2011-2012 academic years. The ALJ allowed benefits, citing the fact that the "type" of employer had changed and that, within the context Wis. Stat. 108.04(17), the type of employer must remain the same for the reasonable assurance provisions to apply. This analysis is correct. The paragraphs of Wis. Stat. 108.04(17) are divided by type of employer, type or capacity of employment and the period of unemployment involved. The type of employer distinction is federally based(1) and is explained in Unemployment Insurance Program Letter (UIPL) 30-85, dated July 12, 1985, as follows in section 4 b:

b. Employer crossover situations. Denial of benefits to educational employees, either between terms or within terms, is not permitted under Section 3304(a)(6)(A), FUTA, when the claimant is crossing over from one type of employer to another. Clauses (i), (ii), and (iii) clearly require reasonable assurance of continued employment with the same type of employer (i.e., an educational institution) as a condition for denial during a period between or within terms. Clause (iv) requires denial " . . . as specified in clauses (i), (ii), and (iii) . . .," while clause (v) permits denial " . . . under the same circumstances as described in clauses (i) through (iv) . . . ." "As specified" and "same circumstances" are interpreted as precluding denial unless there is reasonable assurance of continued employment with the same type of employer, an interpretation that is consistent with existing and previous interpretations of clauses (i), (ii), and (iii), Section 3304 (a)(6)(A), FUTA.

Thus, the appeal tribunal decision is affirmed, as modified.

 

 

rondora : 150 : 1


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Footnotes:

(1)( Back ) The Wisconsin Legislature routinely conforms Wisconsin's Unemployment Insurance Law (Chapter 108) to the federal guidelines found in the Federal Unemployment Tax Act (FUTA). This is because when a state's unemployment insurance laws comply with federal standards, private employers in that state receive a substantial tax credit against their federal unemployment tax payments. However, if the state law does not comply with federal standards, then private employers in the state lose this tax credit and the state itself faces the loss of federal funds for unemployment insurance purposes. DILHR v. LIRC, 161 Wis. 2d 231, 247-48, 476 N.W.2d 545 (1991); Milwaukee v. DILHR Department, 106 Wis. 2d 254, 260, 316 N.W.2d 367 (1982).