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

ELAINE T STUMPF KEMPF, Employe

FLEX STAFF TEMPORARY SERVICES, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97401084AP

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits beginning in week 10 of 1997, if otherwise qualified.

Dated and mailed August 1, 1997
stumpel.usd : 132 : 1  VL 1007 VL 1025

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found the employe was discharged from her employment. The employer maintains that it was the employe's decision to end the employment relationship and it could not force her to stay on the payroll. However, while the employer could not force the employe to remain in its employ, it could have offered her that option. It did not do so.

The commission has addressed the issue of whether an employe who begins working for a temporary help employer, and later transfers to employment with the client of the employer has quit. The commission's decisions rely on whether or not the employe had a choice to continue in the temporary help employment and whether the employe had been informed that she had such choice. In Vicki J Budd v. A Life Style Service, Inc., UC Hearing No. 96-400238AP (LIRC May 10, 1996), the commission found that the employe quit her employment where the employe acknowledged that she could have continued working for the employer by turning down the offer of permanent work. The commission reached a similar result in Kathleen Vanden Berg v. Trinity Resource Corp., UC Hearing No. 95-605562MW (LIRC Dec. 26, 1995). In Vanden Berg the commission noted that the employer was willing to continue the employe's employment if she had not been hired by the client and therefore it was the employe's decision to sever the employment relationship. On the other hand, in Vanessa R. Luster v. A Life Style Service, Inc., UC Hearing No. 96-604265MW (LIRC Sep. 20, 1996), the commission distinguished the cases of Budd and Vanden Berg by noting that in Luster it was understood at the time of hire the employe would be eventually hired by the employer. The commission further stated:

"Unlike the prior cases, the testimony in this case did not establish that the employer was willing to continue her employment if she declined to be hired on a permanent basis by the client. The employer did not indicate that the employe could have continued working for it. Further, even if it were found that the employe could have continued working for the employer, there was no testimony that the employe was aware that she had that option. This distinguishes the present case from the prior cases decided by the commission."

The present case is similar to the Luster case. The employe testified that she did not really have a choice in the matter as to the date of employment with Briess Industries or whether she could stay with Flex Staff. It was the employe's understanding that at some point she would be hired by Briess Industries permanently. Further, the employer affirmatively stated in this case that the employe did not have the option of continuing to work for it. Without such a choice, the employe cannot make a voluntary decision to quit one employment in favor of another.

cc:
STEVE KAMROWSKI
FLEX STAFF TEMPORARY SERVICES

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