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

JOSEPH M MORGESE, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12600294MW


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 started working as a full-time teacher in the 2004-2005 academic year. He was laid off from work as a full-time teacher after the 2010-2011 academic year.

For the first semester of the 2011-2012 academic year, the employee performed "on-call" substitute teaching work for the employer, a public school. The employer's winter break began in week 52, the calendar week ending December 24, 2011, with teachers returning to work on January 3, 2012 (week 1). The employer did not appear for the hearing in this matter but the employee testified that he would remain an "on-call" substitute for the second semester of the 2011-2012 academic year.

Department records reflect that as of week 52 of 2011, the employee was in a continuing claim series, with the 2010 calendar year as his base period for determining unemployment eligibility.

Wis. Stat. § 108.04(17)(g) provides, as follows:

A school year employee of an educational institution who performs services as described in par. (a) (1) or (d)(2) is ineligible for benefits based on such services for any week of unemployment which occurs during an established and customary vacation period or holiday recess if the school year employee performed services for any educational institution in the period immediately before the vacation period or holiday recess, and there is reasonable assurance that he or she will perform the services described in par. (a) or (d) for any educational institution in the period immediately following the vacation period or holiday recess.

The issue before the commission is whether, as of week 52 of 2011, the employee was a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(g).

Wis. Stat. § 108.02(22m) provides that a

"School year employee" means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require performance of services on a year-round basis.

The employee's services were performed as a "school year employee," within the meaning of the above; he was employed by and his services were on behalf of an educational institution and the services were not performed on a year-round basis.

Additionally, while the employee may have worked partially for the employer, the commission finds that week 52 was still a "week of unemployment" within Wis. Stat. § 108.04(17)(g). Specifically, in Brookman et al., v. Milwaukee Public School, UI Dec. Hearing No. 89603455MWG (LIRC August 27, 1990), the commission defined "any week of unemployment which occurs during an established and customary vacation period or holiday recess" as "any calendar week in which some period of unemployment occurs during an established and customary vacation period or holiday recess."(3)

In Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991), "such services" was also interpreted as the services that initially qualified the employee for benefits, namely, the base period services. Given this, the commission must also determine how the employee's services before and after the recess compare with his base period services, primarily consisting of the full-time teaching position.

Wis. Admin. Code § DWD 132.04 provides guidance as to what is reasonably similar. While the code provision does not specifically reference Wis. Stat. § 108.04(17)(g) it does reference an "established and customary vacation period or holiday recess," which is the claimant's situation in week 52 of 2011. The standard set forth in Wis. Admin. Code § DWD 132.04(2) is to treat the terms and conditions of the work as reasonably similar if:

(a) The gross weekly wage is more than 80% of the gross weekly wage earned in the academic year or term which preceded the weeks of unemployment;

(b) The number of hours per week is more than 80% of the average number of hours worked per week in the academic year or term which preceded the weeks of unemployment; and

(c)  The employment involves substantially the same skill level and knowledge as the employment in the academic year or term which preceded the weeks of unemployment.

The "on-call" work was not reasonable similar to the employee's prior full-time position.

The Commission therefore finds that the employee performed services in an instructional, research, or principal administrative capacity before and after a customary vacation period or holiday recess occurring beginning in week 52 of 2011 but he did not have reasonable assurance of performing such services, within the meaning of Wis. Stat. § 108.04(17)(g).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the base period wages earned in school year employment should be used for the employee's eligibility as of week 52 of 2011. The employee is eligible for benefits, if otherwise qualified.

Dated and mailed March 30, 2012

BY THE COMMISSION:

Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

 


morgejo : 150 : 5


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Footnotes:

(1)( Back ) Wis. Stat. 108.04(17)(a) deals with a school year employee's "services in an instructional, research or principal administrative capacity."

(2)( Back ) Wis. Stat. 108.04(17)(d) deals with a school year employee's "services other than in an instructional, research or principal administrative capacity."

(3)( Back ) At the time of the Brookman decision, the applicable statutory section was numbered Wis. Stat. 108.04(17)(c).