BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


In the matter of the
unemployment benefit claim of

BRUCE A BROOKMAN, et al, Employes

Involving the account of

MILWAUKEE PUBLIC SCHOOLS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-602703 MWG


Initial Determinations by Department Deputies held that the employes in the attached appendix, except for Tenita L. Maben, were disqualified from receiving unemployment compensation for weeks 52 and 53 of 1988 and week 1 of 1989, by application of section 108.04(17)(c), Wis. Stats.; a separate Initial Determination held that Tenita L. Maben was not so disqualified. The employes who were denied benefits timely appealed (requested a hearing) as to those Initial Determinations; the employer appealed from the Initial Determination allowing benefits to Tenita L. Maben. After a hearing held on May 15, 1989, the presiding Administrative Law Judge, Charles R. Lund, issued his Appeal Tribunal Decision on June 13, 1989 wherein, after making Findings of Fact and Conclusion of Law, he reversed the initial determinations in part, by holding that Tenita L. Maben was not disqualified from receiving benefits for weeks 52 and 53 of 1988 and week 1 of 1989 and further holding that the other employes listed in the appendix were disqualified from receiving benefits for weeks 53 of 1988 but were not disqualified from receiving benefits for weeks 52 of 1988 and week 1 of 1989. The employer petitioned for review by the Commission.

Based on the evidence and applicable law, and having considered all arguments presented by the parties, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employes were substitute teachers for the employer, a public school district, during the fall semester of the 1988-89 school year. The fall semester began September 2, 1988 (week 36), and ended January 26, 1989 (week 4).

The last day of classes before the Christmas vacation period was December 21, 1988 ( week 52). From December 22, 1988 (week 52) through January 2, 1989 (week 1), there were no classes and no work for substitute teachers. Regular classes resumed January 3, 1989 (week 1). The employes in this group case filed claims for unemployment benefits for some, or all, of weeks 52 and 53 of 1988 and week 1 of 1989.

The issue is whether the employes are disqualified for unemployment benefits for week 52 and 53 of 1988 and week 1 of 1989 under section 108.04(17)(c), 1987 Stats., which provides:

"An employe of an nonprofit or public educational institution or an employe of a government unit or nonprofit organization who provides services to or on behalf of such an institution and who performs services as described in par. (a) and (b) 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 such employe performed such services in the period immediately before such vacation period or holiday recess, and there is a reasonable assurance that such employe will perform such services in the period immediately following such vacation period or holiday recess."

Tenita L. Maben's last day of work before the holiday recess was November 23, 1988 (week 48). Accordingly, she did not perform instructional services for the employer in the period immediately before the holiday recess and is not disqualified from receiving benefits for weeks 52 and 53 of 1988 or week 1 of 1989.

As to the other employes listed in the appendix, they performed, in the period immediately before the holiday recess, instructional services for the employer, an educational institution, and were employes of the employer while performing such services. They had reasonable assurance of performing such services in the period immediately following the holiday recess, inasmuch as there was no change in the employer's system of offering substitute teaching opportunities.

The disqualification is applicable to "any week of unemployment which occurs during an established and customary vacation period or holiday recess." "Week of unemployment," as used in section 108.04(17)(c), Wis. Stats., has not been defined in the unemployment compensation statutes and it has not been judicially defined. "Week" is defined, by section 108.02(27), Wis. Stats., as a calendar week beginning on Sunday and ending on Saturday. Pursuant to section 108.02(15), Wis. Stats., the term "employment", subject to various exceptions, is essentially the performance of services for pay. Accordingly, unemployment is the absence, or lack, of services for pay. An individual may lack employment during only a portion of a calendar week. This is recognized in section 108.02(20), Wis. Stats., which provides that an employe is "partially unemployed" in any week for which he or she earns some wages and is eligible for some benefits under section 108.05(3), Wis. Stats.    Section 108.02(25), Wis. Stats.,  provides that an employe is "totally unemployed" in any week for which he or she earns no wages. The commission therefore considers that a calendar week may be a "week of unemployment," as that term is used in section 108.04(17)(c), Wis. Stats., even though the period of such unemployment is less than an entire calendar week. Accordingly, the commission further considers that "any week of unemployment which occurs during an established and customary vacation period or holiday recess" in section 108.04(17)(c), Wis. Stats., means any calendar week in which some period of unemployment occurs during an established and customary vacation period or holiday recess.

As applied to the instant case, the commission's interpretation of the statute requires denial of unemployment compensation to all of these employes except Tenita L. Maben for weeks 52 and 53 of 1988 and week 1 of 1989. While the commission is aware that the instant decision may be argued to conflict with certain past administrative decisions and at least one non-precedenting circuit court decision, the commission considers that its present interpretation best comports with the underlying unemployment compensation policy of not subsidizing school employes' customary or agreed-to vacation periods.

The commission therefore finds that Tenita L. Maben is not disqualified from receiving benefits for weeks 52 and 53 of 1988 and week 1 of 1989, if she is otherwise qualified.

The commission further finds that the other employes listed in the appendix are disqualified from receiving benefits for weeks 52 and 53 of 1988 and week 1 of 1989, by application of section 108.04(17)(c), Wis. Stats.

The commission further finds that the disqualified employes were paid benefits for weeks in which they were not eligible, within the meaning of section 108.03(1), aWis. Stats. and that, pursuant to section 108.22(8), Wis. Stats., they must repay to the Unemployment Reserve Fund the sums listed in the attached appendix.

DECISION

The appeal tribunal decision is reversed in part. Accordingly, Tenita L. Maben is not disqualified from receiving benefits for week 52 and 53 of 1988 and week 1 of 1989 if she is otherwise qualified. All other employes listed in the appendix are disqualified from receiving benefits for weeks 52 and 53 of 1988 and week 1 of 1989; they are required to repay to the Unemployment Compensation Reserve Fund the sums listed in the attached appendix.

The commission's decision reversing, in part, the appeal tribunal decision is not based on any assessment of credibility differing from that of the appeal tribunal; the commission's partial reversal is based upon a different conclusion of law as to the proper construction and application of the statute.

Dated and mailed May 9, 1990
200 CD1004  ET 481  ET 493

/s/ Kevin C. Potter, Chairman

Carl W. Thompson Commissioner

/s/ Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

There is a considerable volume of administrative appeals related to "reasonable assurance" disqualifications under section  108.04(17), Wis. Stats. It appears that this is due, at least in part, to uncertainty as to the commission's interpretation and application of the statute. Accordingly, the commission has reexamined the statute, relevant Wisconsin and Federal legislative history and past decisions of the department, the commission and reviewing Wisconsin Courts. In that process, recurring questions have been identified; the following represents the commission's considered, current answers to those questions.

1. What degree of certainty, with respect to anticipated school employment, is required in order for "reasonable assurance," within the meaning of statutes, to exist? Reasonable assurance is an 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. A written contract "guaranteeing" employment may constitute "reasonable assurance," but a contract is not a prerequisite to the "reasonable assurance," which may be shown, alternatively, by an offer of employment or, in some instances, a well-established custom of continued employment.

2.  What degree of similarity in the terms and conditions of anticipated school employment is required in order for the "reasonable assurance," disqualification to apply? A "reasonable" similarity of terms and conditions of employment is required. Leissring v. DILHR, 115 Wis. 2d 475, 489 (1983). While determinations of "reasonable similarity" must be made on the particular facts of each case, the commission adopted a policy, after Leissring, and the department subsequently promulgated a rule (ILHR 132.04), applying a "20 percent test" to the effect that "reasonably similar" employment must not only involve substantially the same skills and knowledge but must also provide wages and hours of work per week amounting to more than 80 percent of those in the preceding period.

3. What is the effect of the "reasonable assurance" disqualification upon base-period or benefits-year employmentWhat is the effect upon school or non- school employment?  In all unemployment compensation weeks to which the disqualification applies, the affected claimant is disqualified from receiving nay benefits based on any base-period school employment, whether or not the school employer providing "reasonable assurance" during such claimant's benefit-year is also a base-period employer of such claimant.  In weeks to which the "reasonable assurance" disqualification applies, a claimant is not thereby disqualified from receiving benefits based on non-school employment to which the claimant may otherwise be entitled.

4. How do "reasonable assurance" disqualifications apply to weeks during which and employer-school is closed on some, but not all, week-days? "Week of unemployment" has not been defined in Wisconsin unemployment compensation statutes, nor has the term been defined judicially. The term "employment," while subject to numerous statutory exceptions, means the performance of services for pay, pursuant to section 108.02 (15), Wis. Stats.   Section 108.02(27), Wis. Stats., defines "week" as a calendar week, starting Sunday and ending Saturday. However, section 108.02(20), Wis. Stats., provides that an employe is "partially unemployed" in any week for which he or she earns some wages and is eligible for some benefits under section 108.05(3), Wis. Stats.   Section 108.02(25), Wis. Stats., provides that an employe is "totally unemployed" in any which for which he or she earns no wages. It is thus clear that "unemployment" exists in a given calendar week even if the period of such employment is less than an entire calendar week. Therefore, the disqualification is applicable to any calendar week in which some period of unemployment occurs during an academic recess.

5. Are the "reasonable assurance" disqualifications applied differently to claimants who provide different kinds of services to school employers?   No.   For example, whether a teacher is a full-time, part-time or substitute teacher, (1) the periods of employment to be compared are the same; (2) the standard of comparison (the 80 percent test) is the same and (3) the effect of the disqualifications, where applicable, is the same: no benefits may be paid based on any base-period school employment.

While obviously not exhaustive of all possible issue under section 108.04(17), Wis. Stats., the purpose of the foregoing is to specifically state the Commission's views as to the proper interpretation and administrative application of that statute in the context of a number of issues which have actually arisen in cases before the commission. To the extent that the commission's above-stated policy may be argued to conflict with particular past decisions of the Commission or Circuit Courts, the Commission here indicates that it will apply the above-stated interpretations unless or until foreclosed by new statutory language or new, properly promulgated and binding administrative rules, or a court decision.

[Group Appendix omitted in this HTML reproduction]

cc:
Attorney Richard Perry
Perry Lerner & Quindel SC

Sid Hatch
MTHA Union Representative

Stuart S Mukamal
Assistant City Attorney


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