CLAYTON F HEMENWAY, Employee

LIFE STYLE STAFFING, Employer

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:

The employee worked for about thirty-one weeks as an order picker for the employer, a temporary help company. His assignment ended on May 4, 2012. On May 9, 2012 (week 19), the employer offered the employee a position as a machine operator that paid $11.25 per hour for 40 hours per week on second shift. The employee refused the offer. The employee chose not to accept the work due to the rate of pay, which was less than the $13.50 per hour he was paid for work in his last assignment.

The issue to be decided is whether the employee failed to accept an offer of suitable work.

Wisconsin Stat. § 108.04(8)(a) provides in part:

If an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible to receive benefits until 4 weeks have elapsed since the end of the week in which the failure occurs and the employee earns wages after the week in which the failure occurs equal to at least 4 times the employee's weekly benefit rate under s. 108.05(1) in employment or other work covered by the unemployment insurance law of any state or the federal government.

Wisconsin Stat. § 108.04(9)(b) provides in part:

(9) Protection of Labor Standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
...

(b) If the wages, hours, including arrangement and number, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.

The employer was a temporary help company as defined in Wis. Stat. § 108.02(24m). Under Wis. Admin. Code ch. DWD 133, an employee of a temporary help company is considered to be in a continuing employment relationship with the employer, even when the employee's assignment comes to an end, if it offers a new assignment to the employee that meets certain conditions. One of those conditions is set out in Wis. Admin. Code § DWD 133.02(1)(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).

If the employment relationship is continuing, the suitability of the new job assignment is measured by whether it met the minimum standards under which the employee had agreed to work for the temporary help company. Camacho v. Site Staffing, Inc., UI Dec. Hearing No. 08605846MW (LIRC Nov. 12, 2008).

Although the appeal tribunal in this case allowed the employer time after the hearing to produce a written application of the employee in evidence to meet the conditions of Wis. Admin. Code § DWD 133.02(1)(c), the employer failed to do so. The employment relationship, then, is considered to have ended with the last assignment, and any new assignments offered are offers of new work. Cardenas
v. Seek Career Staffing, Inc. UI Dec. Hearing No. 11401111AP (LIRC Nov. 29, 2011); see, also, Piotrowski v. Site Staffing, Inc., UI Dec. Hearing No. 11606826MW (LIRC Jan 19, 2012).

Thus, under Wis. Stat. § 108.04(9)(b), the employee was entitled to refuse offers of new work from the employer if the conditions were substantially less favorable to him than those prevailing for similar work in the locality. According to a certified labor market report provided by Wisconsin's Conditions of Database System (COED) for Job Refusals or Voluntary Terminations, the point of pay at which 75% of workers earn more and 25% of workers earn less is $11.73. Therefore, the conditions of work offered were substantially less favorable to the employee than those prevailing for similar work in the labor market.

The commission therefore finds that in week 19 of 2012, the employee failed to accept an offer of work in which the wages, hours, including arrangement and number, or other conditions of the work offered were substantially less favorable to the employee than those prevailing for similar work in the labor market, pursuant to Wis. Stat. § 108.04(9)(b), and benefits are not denied.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2012, if otherwise qualified.

Dated and mailed January 9, 2013

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not confer with the administrative law judge about witness credibility, as its decision to reverse does not depend on a differing credibility assessment. Instead, the commission reaches a different legal conclusion regarding the failure to accept an offer of work.

hemen12 . urr : 107 : 5

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