Wis.LIRC UC Decision: Kunze, Jane - November 29, 2013 - AA 110 – Due notice of work available is fact-intensive issue. ER's notice to the EE of "short notice" assignments discussed; was the notice fairly & reasonably calculated to acquaint the EE of the existence of work. Notice of one hour & twenty minutes was not "due notice," while other notice was found to constitute "due notice."

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued four appeal tribunal decisions in these matters. A timely petition for review was filed, listing each of the four hearing numbers.

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 is a bus operator for the City of Stevens Point. As a bus operator for the employer, she was required to bid for routes, with bidding done by seniority. The employee is the 11th worker of the 19 bus operators on the seniority list. When it was her turn to bid, she bid on a route providing services only when the local university was in session; no guaranteed full-time year-round routes were available to her.

When the employee's route does not operate, the employee is required to check the employer's schedule weekly for possible work assignment on other routes. The employer posts a schedule on the prior Thursday for the following week. The employee can decline the scheduled work. The employee is paid $19.92 per hour for her work. In addition to the scheduled fill-in work, the employer may offer "short notice" work; it is offered in seniority order. The employee has provided the employer with her residential telephone number as her number for such contacts. In the past, she provided her mobile telephone number but it was problematic for such contacts based on the cellular coverage near her residence and the fact that she did not always carry her cellular telephone. Department records reflect that, as of week 23, the employee was actively filing weekly claims for unemployment insurance benefits.

(a) Except as provided in s. 108.062 (10), if an employee is with due notice called on by his or her current employing unit to report for work actually available within a given week and is unavailable for, or unable to perform:
1. Sixteen or less hours of the work available for the week, the employee's eligibility for benefits for that week shall be reduced under par. (bm).[(1 ) ]
2. More than 16 hours of the work available for the week, the employee is ineligible for benefits for that week.

The week of issue for hearing number 13003015MD is week 23, June 2 through 8, 2013. For this week, the table lists the work available that the employer notified the employee of, in advance, and by shorter notice, and annotates any work that was declined.

With respect to the June 6, 2013 short-notice work, the employee testified that she did not recall the notice but was unavailable for work that day.

The week of issue for hearing number 13003016MD is week 24, June 9 through 15, 2013. For this week, the table lists the work available that the employer notified the employee of, in advance, and by shorter notice, and annotates any work that was declined.

The week of issue for hearing number 13003017MD is week 26, June 23 through 29, 2013. For this week, the table lists the work available that the employer notified the employee of, in advance, and by shorter notice, and annotates any work that was declined.

With respect to the June 28, 2013 short-notice work, the employee testified that she was out of the house and did not receive the notice until after the shift.

The week of issue for hearing number 13003018MD is week 27, June 30 through July 6, 2013. For this week, the table lists the work available that the employer notified the employee of, in advance, and by shorter notice, and annotates any work that was declined.

With respect to the July 5, 2013, short-notice work, the employee testified that she was out of the house all day and did not receive the notice until after the shift.

Thus, the issue before the commission is whether the employee had due notice of work available in week 23 (Hearing no. 13003015MD), week 24 (Hearing no. 13003016MD), week 26 (Hearing no. 13003017MD), and week 27 (Hearing no. 13003018MD), which will reduce the employee's weekly unemployment insurance eligibility.

In this case, the ALJ found that despite the fact that the employee was not "on call," she knew that the employer might call on short notice and offer additional work. She found this practice customary and longstanding. As such, she found that the employer's telephoning of the employee at home with work, with as little as one to two-hours' notice, constituted due notice of work available and that the wages she would have earned for those shifts should be added to the wages she earned to reduce her benefit eligibility.

In her petition, the employee agreed that, if she declined the work scheduled the prior week, the due notice statutory provision applied to reduce her unemployment insurance eligibility. However, she argued that any work missed for which the employee was called on with "short-notice," should not constitute due notice of work available. To support her argument regarding the short-notice work, the employee referenced her employment contract under which she is not required to accept such work. Yet, a claimant's eligibility for unemployment benefits is to be determined by statute, not by the terms of a private agreement. Roberts v. Indus. Comm'n, 2 Wis. 2d 399 (1957). The commission must analyze the facts of the employee's situation and determine whether the statutory due notice provisions apply. "Due notice" refers to notice that is fairly and reasonably calculated to acquaint the employee with the existence of the work that is available. Whitehead v. Midwestern Performance Assessment Ctr. Inc., UI Dec. Hearing No. 99607528MW (LIRC May 3, 2000), citing the 1991 Department Disputed Claims Manual, (affm'd Whitehead v. Labor & Indus. Review Comm'n, Case Nos. 00-CV-280 & 00-CV-281 (Wis. Cir. Ct. Washington Cnty., Dec. 6, 2000)).

Also, although the employee also argued that she prevailed last year following a hearing on the same issue, the earlier appeal tribunal decision is not binding on the commission. What the differing ALJ decisions do evidence is the fact-intensive nature of the due notice of work available issue. In terms of guidance, the current "Work Available" provisions of the Department's On-line Disputed Claims Manual, dated10/31/12, provides in Section II. C, "Was the employee given due notice of such work?"

Due notice is not defined in the statute but the basic principles for satisfying this element were established by precedent-setting decisions very early in Wisconsin's UI history.

The due notice element is satisfied if the employer notified or made a reasonable effort to notify the employee of the work available in a timely manner.

▪ The employer's method of notification must be made with the intent (and with fair and reasonable expectations) that the notice will actually be received.
▪An employer may have special arrangements with employees (custom or express agreement) that satisfy the due notice requirements but only if they consider the employee's interests and are equitable for both parties.
▪An employee does not have due notice of available work from a given employer if already offered and committed to work for another employer for the same time period. However, if the second offer is chosen over the first offer, or if the second offer is received after the first offer is declined, the missed work with the first employer, from whom there was due notice must be considered.
▪Industry practices and individual circumstances, as well as the actual amount of time, need to be considered to determine whether the notification was "timely".

The due notice element is also considered satisfied when actual notice of available work is precluded by the employee requesting time off prior to being called or scheduled.

In Wozny v. Blue Knight Police Inc., UI Dec. Hearing No. 08600405MW (LIRC May 8, 2008), due notice of work available was found for an employee who typically worked weekends for the employer but was assigned third-shift work, which he declined. Specifically, the commission explained,

[T]he employee was not incapable of performing the work and the work would not have jeopardized his health or safety. It does not matter whether the employee was hired to work a particular shift or on particular days. The employee's current employing unit offered the employee work that was available to him. The employee failed to perform that work.

In Werlein v. City of Eau Claire, UI Dec. Hearing No. 04201986EC (LIRC May 24, 2005), the commission held that due notice did not apply to Werlein, a bus operator who received short notice of fill-in assignments. In concluding that due notice did not apply in the narrow circumstances presented, the commission commented that workers were not required "to stay by their telephones on the chance their employers might call them for additional shifts," adding that the record did not indicate that workers were required to wait for last-minute assignments; typically 24 hour notice was required. Additional equitable considerations factored into the commission's decision in Goli-Hanson v. Professional Health Care Services Inc., UI Dec. Hearing No. 04403986AP (LIRC Feb. 8, 2005), which found no due notice of work available where the employee received very short notice of an assignment that was 80 miles away and where, at the time of the assignment, the employee lacked sufficient transportation arrangements and childcare mechanisms to accept the assignment.

The language "fairly and reasonably calculated to acquaint the employee with the existence of the work" balances an employer's need that work available be performed and a worker's eligibility for benefits.

The commission disagrees with the employee that, just because work was not scheduled the week before, means the employee does not have fair or reasonable notice. The employee was an active employee of the employer in each of the weeks at issue. She had provided a telephone number for such contacts and, as evidenced by the record in this case, she was contacted frequently. In fact, the commission finds that the notice on June 4 for work on June 6 satisfies this test as does the several hour notice of work on July 5. However, the contact on June 3, a day she was already scheduled, of an hour and 20 minutes before the shift start was not due notice of work available. Similarly, the hour and 10 minute notice on June 28 was also not due notice of work available.

For hearing no. 13003015MD, the employee was called upon with due notice for week 23 of 2013 for 6.75 hours of work available that she did not perform. Pursuant to Wis. Stat. § § 108.04(1)(a), 108.04(1)(bm), and 108.05(3)(a), the wages that she would have earned, had she performed the work, totaling $133.79, are added to the actual wages earned to reduce her benefit eligibility. The employee is due benefits of $118.00.(2 )

Additionally, for hearing no. 13003015MD, recovery of the $2 in overpaid benefits is waived under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the claimant or the employer as provided in Wis. Stat. § 108.04(13)(f) and the overpayment was a result of departmental error within the meaning of Wis. Stat. § 108.02(10e)(a) and (b).

For hearing no. 13003016MD, the employee was called upon with due notice for week 24 of 2013 for 11.75 hours of work available that she did not perform. As a result, the wages that she would have earned, had she performed the work, are added to any actual wages to reduce her benefit eligibility pursuant to Wis. Stat. § § 108.04(1)(a), 108.04(1)(bm), and 108.05(3)(a).

For hearing no. 13003017MD, the employee was not called upon with due notice of work available for week 26 of 2013. As a result, there is no benefit reduction pursuant to Wis. Stat. § 108.04(1)(a). The employee was entitled to benefits due of $321.00, following the benefit reduction based upon the work that she actually performed in that week.

For hearing no. 13003018MD, the employee was called upon with due notice for week 24 of 2013 for 5.5 hours of work available that she did not perform. As a result, the wages that she would have earned, had she performed the work, are added to any actual wages to reduce her benefit eligibility pursuant to Wis. Stat. §§ 108.04(1)(a), 108.04(1)(bm), and 108.05(3)(a).

The appeal tribunal decision for hearing no. 13003015MD is modified to conform to the above findings and, as modified is reversed in part and affirmed in part. Accordingly, the employee was eligible for a partial unemployment insurance benefit of $118.00 for issue week 23 of 2013. The employee has been overpaid benefits totaling $2.00 for that week but recovery of the overpayment is waived.

The appeal tribunal decision for hearing no. 13003016MD is affirmed, with minor modification to correct the week of issue in the "Decision" paragraph. Accordingly, the employee was eligible for a partial unemployment insurance benefit of $111.00 for issue week 24 of 2013.

The appeal tribunal decision for hearing no. 13003017MD is reversed. Accordingly, the employee was eligible for a partial unemployment insurance benefit of $321.00 for issue week 26 of 2013.

The appeal tribunal decision for hearing no. 13003018MD is affirmed. Accordingly, the employee was eligible for a partial unemployment insurance benefit of $248.00 for issue week 27 of 2013.

NOTE: The commission did not confer with the ALJ prior to modifying the ALJ's decision for hearing number 13003015MD; the modification is to correct a mathematical error. With respect to the commission's reversal of 13003017MD, the reversal is not due to a differing credibility assessment but as the result of an opposite legal conclusion as to whether the notice provided was sufficient to constitute due notice of work available. The commission has explained its differing legal conclusion above.

For purposes of par. (a) 1. and (b) 2., the department shall treat the amount that the employee would have earned as wages for a given week in available work as wages earned by the employee and shall apply the method specified in s. 108.05 (3) (a) to compute the benefits payable to the employee. The department shall estimate wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.

Except as provided in pars. (c), (d) and (dm) and s. 108.062, if an eligible employee earns wages in a given week, the first $30 of the wages shall be disregarded and the employee's applicable weekly benefit payment shall be reduced by 67% of the remaining amount, except that no such employee is eligible for benefits if the employee's benefit payment would be less than $5 for any week. For purposes of this paragraph, "wages" includes any salary reduction amounts earned that are not wages and that are deducted from the salary of a claimant by an employer pursuant to a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125, and any amount that a claimant would have earned in available work under s. 108.04 (1) (a) which is treated as wages under s. 108.04 (1) (bm), but excludes any amount that a claimant earns for services performed as a volunteer fire fighter, volunteer emergency medical technician, or volunteer first responder. In applying this paragraph, the department shall disregard discrepancies of less than $2 between wages reported by employees and employers.

(2)( Back ) The employee was paid $120 in unemployment insurance benefits for the week, based upon the ALJ's decision, finding that the employee could have performed an additional 6.55 hours of work. However, the ALJ's decision contained a mathematical error, treating an hour and a half of potential work as 1.3 hours instead of 1.5.