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

RYAN J HELGESON, Employee

MADISON AREA TECHNICAL
COLLEGE DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12001216MD


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 performs services as a part-time "stage worker" for the named employer, the Madison Area Technical College District. He is scheduled by and works for the "campus scheduling and event services" department and his duties include set up and tear down of meetings and special events conducted by the college and outside organizations using the employer's facilities.

The employee testified that week 11 of 2012, the calendar week ending March 17, 2012, was the employer/technical college's Spring Break. He generally testified that the campus scheduling and event services department had scheduled events when school was not in session and that the events were scheduled at the employer's Truax campus, its downtown educational center campus and its west campus. He indicated that while there was a holiday recess and summer break, the building was still open with his department handling events for outsiders renting the employer's space. He also indicated that there was one week, between Christmas and New Year's that the school is "completely closed."

For the week of Spring Break, the employer's building was not closed and the employee's department had a number of scheduled events that week. The employee only worked one hour the Monday of Spring Break because that was all he was scheduled for.

Department records reflect that the employee initiated a new claim for benefits on December 5, 2011. His base period for this claim consisted of the third quarter of 2010 through the second quarter of 2011 and the employee's services for the employer were not only in the base period but also before and after the Spring Break holiday recess.(1)

Wis. Stat. § 108.04(17)(g) provides:

A school year employee of an educational institution who performs services as described in par. (a) or (d) 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 such 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.

In order to determine whether the reasonable assurance provision applies to disqualify the claimant for eligibility for benefits(2) during week 11, the commission must first determine whether the claimant was a "school year employee."

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.

Even though the employer did not appear at the hearing and it is the employer's burden to establish disqualification under the reasonable assurance provisions,(3) the ALJ found that the claimant was a school year employee. The ALJ based this finding on the fact that the claimant was performing services under a contract that was not "year round."

The employee petitioned the appeal tribunal decision alleging that he was not a school year employee and should not be subject to a denial of benefits within the meaning of Wis. Stat. § 108.04(17)(g) for the week 11 Spring Break holiday.

In Ashleson et al. v. LIRC and CESA # 11, 216 Wis. 2d 23, 32, 573 N.W.2d 554 (Ct. App. 1997), the Wisconsin Supreme Court stated that the school year employee definition was "clear and unambiguous," requiring an employment contract that does not require performance of services year-round. However, an overly narrow reading of this, resulting in greater denial of benefits, is not supported by the original definition of "school year employment" and is contrary to the intent of the department's provisions and federal conformity.

Construing the definition of "school year employee" narrowly, thus preventing an overbroad application of the disqualifying provisions of the reasonable assurance disqualification under Wis. Stat. § 108.04(17)(e), is consistent with the reason why the definition was added to the Wisconsin statutes. The statutory definition was created by 1993 Wis. Act 373, a bill agreed upon by the labor and management members of the Unemployment Insurance Advisory Council (UIAC). The UIAC language summary of the agreed-upon bill provides, in part and with emphasis:

108.02(22m) Create a section to define "school year employee" as only those employes who are hired to work during academic years, terms or periods, explicitly excluding those hired to work on a year round basis. This definition, in conjunction with the amendments to section 108.04(17) will ensure that section 108.04(17) will apply only to school year employes.

REASON: This explicit definition and clarification of "school year employes" will bring Wisconsin unemployment compensation law into conformity with federal provisions as specified by the United States Department of Labor. [Underlining supplied.] Plain Language Summary of the Unemployment Compensation Advisory Council Agreed Upon Bill (dated 01/11/94).

The history reflects an intent to apply to workers who are hired to work during academic periods. In the case before the commission, there is no evidence that the employee was hired under a contract that defines his periods of work by academic years, terms or periods. Again, the employer did not appear and the employee testified that his work schedule was not defined by academic years, terms or periods. Finding the employee not to be a "school year employee" would continue with the commission's prior approach to this issue.

Since Ashleson was decided in 1997, the commission interpreted and applied the statutory definition in multiple decisions;(4) these decisions show a consistent practice, of interpreting the definition of "school year employee" strictly with respect to employees who are not providing services in an instructional, research or principal administrative capacity. The decisions also emphasize the connection or integration of the work with the educational institution's educational program or goals to define "school year employee" in the context of academic year, term or period.

Further explaining the narrow interpretation of the definition of "school year employee" in Schmidmayr v. City of Stevens Point, UI Dec. Hearing No. 09005412WR (LIRC June 10, 2010)(affrm'd City of Stevens Point v. LIRC, Wis. Cir. Ct. Portage Co., Feb. 28, 2011), the commission noted that Wis. Stat. § 108.04(17)(e) is an "opt in" disqualifying provision from the Federal Unemployment Tax Act (FUTA), not a required provision. In connection with this "optional" provision specifically, the United States Department of Labor has stated that:

Social legislation such as the FUTA is to be construed broadly with respect to coverage and benefits. Exceptions to its statutory remedies are to be narrowly construed. (See United States v. Silk, 331 U.S. 704, 712 (1947).) Accordingly, since the denial provisions are exceptions to the broad coverage provisions of Section 3304(a)(6)(A), they are given a narrow reading. The narrower reading in this case dictates that the application of an optional clause may be limited to scope and/or time by a State.

Such a reading, which permits a State to differentiate among services, or otherwise limit application of a clause, could also result in extending coverage to the broadest number or unemployed persons, thereby accomplishing the basic coverage requirements of Section 3304(a)(6)(A) FUTA....

U.S. Department of Labor, Unemployment Insurance Program Letter (UIPL) No. 43-93, Optional Between and Within Terms Denial Provisions of Section 3304(a)(6)(A) of the Federal Unemployment Tax Act (September 12, 1993).(5) Finally, overbroad application of the disqualifying provisions of Wis. Stat. § 108.04(17)(g) would run contrary to the purposes of reasonable assurance statute as explained by the Supreme Court in Leissring v. DILHR, at 115 Wis. 2d 484,

In enacting the Wisconsin Unemployment Act, ch. 108, Stats., the legislature recognized a need to ameliorate the economic hardship and social costs of unemployment. See sec. 108.01. Chapter 108 therefore requires that unemployment compensation benefits be provided to any eligible person considered to be unemployed, unless that individual falls within a disqualifying provision. In construing sec. 108.04(17)(a), we must read the disqualifying language with the general purpose of ch. 108 in mind.

For the reasons set forth earlier, and consistent with prior decisions and federal intent, the commission therefore finds that the employee was not a "school year employee" within the meaning of Wis. Stat. § 108.22(22m) and, thus, the reasonable assurance provisions found at Wis. Stat. § 108.04(17)(g) do not apply to affect his eligibility for benefits.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the wages earned by the employee as a school year employee shall be included in the computation for benefits for the applicable weeks.

Dated and mailed September 28, 2012
helgery2 : 150 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the administrative law judge prior to reversing the decision in this matter. The reversal is not based upon a differing credibility assessment but based upon the commission's differing legal conclusion regarding whether the employee was a "school year employee."

 


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Footnotes:

(1)( Back ) In order to decide whether a reasonable assurance analysis before and after the break is material, the base period services must be determined to be those in "school year employment." See Torrey Jr. v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC April 27, 2007).

(2)( Back ) If the disqualification applies, then any school year employment wages are removed from the base period for computation purposes. Corona v. Kenosha Public School and Racine Unified School District, UI Dec. Hearing Nos. 06605019RC and 06605020RC (LIRC April 13, 2007).

(3)( Back ) See Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC Sept. 3, 1999).

(4)( Back ) See Schmidmayr v. City of Stevens Point, UI Dec. Hearing No. 09005412WR (LIRC June 10, 2010)(affrm'd City of Stevens Point v. LIRC, Wis. Cir. Ct. Portage County, Feb. 28, 2011)(municipal bus driver on "university" routes); Waldoch v. School District of Kettle Moraine, UI Dec. Hearing No. 10607651WK (LIRC Dec. 17, 2010)(school secretary); Engel v. Northcentral Technical College, UI Dec. Hearing No. 08201698EC (LIRC Oct. 31, 2008)(part-time assistant for the a technical college); Higgins v. Milwaukee Public Schools, UI Dec. Hearing No. 07604581MW (LIRC Nov. 30, 2007); (employee who provided services as a municipal recreation sports official and a part-time grounds recreation worker); Weiler v. UW Madison, UI Dec. Hearing No. 05001829MD (LIRC July 15, 2005) (tutor); Wabnitz v. Oshkosh Public School, UI Dec. Hearing No. 03404679AP (LIRC July 20, 2004) (adult basketball and adult softball game official for a school district's recreation department); Aumann v. Eau Claire Area School Dist., UI Dec. Hearing No. 03201414EC (LIRC Jan. 9, 2004) (substitute teachers); Suprenand v. Moraine Park VTAE District, UI Dec. Hearing No. 02000525FL (LIRC Sept. 19, 2002) (an employee required to perform services year round); Witczak v. Lakeshore Technical College, UI Dec. Hearing No. 97401841 (LIRC March 19, 1998) (instructor/coordinator in police science program at vocational school); Schwahn v. Coop Educational Service Agency # 11, UI Dec. Hearing No. (LIRC March 28, 1997) (employees performing services under an implicit employment contract).

(5)( Back ) Because the state unemployment insurance statutes are substantially influenced by FUTA, publications of the United States Department of Labor are relevant in interpreting the reasonable assurance statutes. DILHR v. LIRC, 161 Wis. 2d 231, 247-48, 467 N.W.2d 545 (1991).