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

DENISE WARD, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
 Hearing No 12606487MW


 

ORDER

Wisconsin Stat. § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of evidence previously submitted, may order the taking of additional evidence, or may remand the matter to the department for further proceedings.

Pursuant to the authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the appeal tribunal decision for Hearing No. 12606487MW and remands the matter for a new hearing and decision, considering the following factors:

(1) Whether the employee performed services in the 2011-2012 school year as a school year employee and, if so, for what entities she performed the school year services and the nature and extent of those services;

(2) Whether at the end of the 2011-2012 academic year, she had reasonable assurance of performing such services for any entities for the 2012-2013 school year and the nature of the assurance;

(3) If the school year services or assurance included substitute teaching work, whether the opportunity for work was similar (i.e.,. the manner by which substitutes are called to work, the number of substitutes the employer anticipates needing, and the number of substitutes from which the employer may select, etc.), and

(4) Whether the employee had any school year employment in the employee's base period and the nature and details of that employment.

Dated and Mailed October 31, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee indicated that she performed services as a substitute teacher for the employer in the 2011-2012 academic year and that she received notice of being on the substitute teaching list for the 2012-2013 academic year.

Wis. Stat. § 108.04(17)(a)1 provides:

A school year employee of an educational institution who performs services in an instructional, research or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs:

1. During the period between 2 successive academic years or terms, if the school year employee performed such services for any educational institution in the first such year or term and if there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term. . .

Reasonable assurance is "assurance of employment sufficiently certain that a reasonable person in the same situation would rely upon such assurance in making decisions related to employment and income." Bruce A Brookman, et. al. v. Milwaukee Public Schools, UI Dec. Hearing No. 89602703MWG (LIRC May 9, 1990).

In Leissring v. DILHR, 115 Wis. 2d 475 (1983), the Wisconsin Supreme Court held that the terms and conditions of the employment for the following year must be reasonably similar to those in the preceding year. The reasonably similar requirement applies to substitute teachers as well as full-time and part-time teachers. DILHR v. LIRC and Smithson, 155 Wis. 2d. 256 (Wis. Ct. App. 1990).

To establish reasonable assurance for short-term substitute teaching, the commission holds it is an employer's burden to present evidence that the employee's opportunity to work in the upcoming school year would be similar to the opportunity the employee had in the prior academic year or term; such evidence includes the number of substitutes the employer anticipates needing, how many substitutes it had to select from, how substitutes are selected (seniority, teacher preference, subject matter), and the ratio of teachers to substitutes, as compared to the prior year. Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC Sept. 3, 1999).

In Fetzer v. West Bend Joint School District No. 1, UI Dec. Hearing No. 93605520WB (LIRC Feb. 17, 1994), the commission discussed the relationship between long-term and short-term assignments with a finding of reasonable assurance, indicating that:

. . . the three following factors will be required when determining whether placement on a substitute teaching list is "reasonable assurance of similar employment" within the meaning of the law. The first step requires determining the type and length of teaching assignments the employe worked in the preceding school year. The second step requires determining what percentage of the employe's total school year employment in that preceding school year was comprised of long-term teaching assignments. The third step requires determining the type and duration of substitute teaching assignments assured in the next school year. If, after this assessment and comparison, all relevant factors lead to a conclusion that the long-term teaching assignment(s) constituted less than 20 percent of the employe's total employment for the preceding academic year, placement on a substitute teaching list would constitute reasonable assurance within the meaning of the law. On the other hand, if, after this assessment and comparison, all relevant factors lead to a conclusion that the long-term teaching assignment(s) constitute 20 percent or more of the employe's total employment for the preceding year, assurance of long-term assignment(s) and/or placement on a substitute teaching list will not automatically constitute reasonable assurance of similar employment.

In Callahan v. Madison Metropolitan School District, UI Dec. Hearing No. 08003000MD (LIRC Jan. 23, 2009), the commission continued to reject the notion that any long-term assignment

mandated that the employee receive an offer of long-term substitute teaching in the subsequent academic year before a finding of reasonable assurance could be made; instead, the commission used a case by case analysis, requiring a comparison of wages, terms and conditions of employment, and determination of whether a "reasonably comparable demand" exists.

Also, in Wanish v. LIRC, 163 Wis. 2d 901 (Ct. App. 1991), "such services" was interpreted as the services that initially qualified the employee for benefits. The commission has opined that the Wanish Court's analysis of the meaning of "such services" applies to all parallel statutory provisions using the "such services" language and has consistently taken this approach. See, Steingrabe v. Hustisford School District, UI Dec. Hearing No. 05600905WB (LIRC Oct. 6, 2005), and the cases cited therein.

The commission has set aside the appeal tribunal decision and has remanded the matter for a new hearing, consistent with development of the record as outlined
above, and decision.


wardfor : 150 : 2

 


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