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

JOEANN JACKSON, Employe

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97607140MW

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked in various positions on a temporary basis at client firms of the employer, a temporary placement agency, over the course of three months. Her last day of work prior to the issue in question was July 30, 1997 (week 31).

On Thursday, July 31, 1997 (week 31), the employe was advised by the employer that her services were not needed on July 31 or August 1 at the client firm she had worked for in the previous six weeks, Allen-Bradley. Concurrently, she was offered work at a different client firm, Quad Graphics, working between the hours of 7 a.m. and 7 p.m., with three days on and four days off and alternate Sundays on. The employe declined to accept that work based on the arrangement of hours. She indicated that she wanted to wait and see if she was called back by Allen-Bradley. She was told to call the employer back on, Monday, August 4.

On August 4, 1997 (week 32), the employe was told that she was not needed at Allen-Bradley all week and was to call the employer about it on Friday. She was then offered work as a telemarketer, Monday through Friday 3 p.m. until 9 p.m., with a possibility of working from 9 a.m. until 5 p.m. and Saturday and Sunday, at the rate of $5.75 per hour. She refused the offer due to the low wage rate, because she lacked transportation to the job on that day, and because she believed it would interfere with the hours she was to work for another employing unit. The rate of pay offered was in the lower 25 percentile of wages paid for similar work, the cutoff point being $6.86 per hour.

The issue to be decided is the effect of the employe's refusal of the week 32 of 1997 offer of work. (1) The commission finds that the employe was with due notice called upon by her current employing unit to report for work actually available in that week and failed to perform such available work.

The employer's argument is that based on its "contract of hire" the employe quit her employment with the employer when she declined the Quad Graphics position in week 31 of 1997 and when she declined the telemarketer position in week 32 of 1997. The "contract of hire" was introduced as exhibit 2, and is entitled Cornwell Staffing Services (CSS) Employment Policy. That policy generally provides that an employe who does not complete an assignment; leaves work without calling the employer; does not report for work without good cause (as determined by the employer), or without sufficient notice; does not call the employer immediately after an assignment ends; or does not accept scheduled work, has quit. The policy further states, in effect, that the employe agrees to accept any job no matter what the duties, hours, or location of the job as long as it pays at least minimum wage.

The commission cannot conclude that the employe evinced an intent to quit her employment or constructively quit her employment by refusing the offered work in week 32 of 1997. (2) First, simply because the employer decides that a worker quits under certain circumstances, determined at the employer's sole discretion, does not make it so. Whether a worker has in fact quit depends on the individual circumstances of each case. In Canney v Olsten of Milwaukee, Inc., UI Hearing No. 92-601990 (LIRC Dec. 4, 1992), the employer argued that the employe quit her employment, when she notified the employer she would be unable to complete an assignment because she had to attend a funeral. (3) The commission rejected such argument, finding instead that the employe failed to perform work available. The commission stated:

"However, her absence from work, to attend the funeral, was reasonable. Furthermore, when she notified the employer that she would not be completing the assignment, the employer did not indicate that it considered her to have quit at that time. While the employer's policy provided that workers who do not complete assignments are considered to have quit, the unemployment compensation laws are not determined by an employer's policies. The facts of this case do not indicate an intention on the part of the employe to voluntarily terminate her employment..."

In DeJesus v. Cornwell Personnel Associates, Ltd., UI Hearing No. 90603194 (Apr. 9, 1991), the employe ended a long-term assignment on March 8 and was offered another assignment that same day that she refused due to a lack of transportation. On March 9 the employe was offered another assignment. The employe indicated that she thought the commute was excessive but would get back to the employer. The employe did not again contact the employer until March 12. The employer questioned the employe's failure to contact the employer. The employe indicated that she believed she was supposed to take the assignment and was calling to say that she had attempted to get to the job site by bus but was unable to do so. The commission rejected the contention that the employe quit when she refused work on March 8, instead finding the employe failed to perform work available. The commission stated:

"First, the employe's refusal of the assignment cannot be characterized as conduct inconsistent with an intent to continue the employment relationship. The employe refused the assignment only because she had no way of getting to it. Second, neither the employe nor employer interpreted the employe's refusal of the assignment as a quit of employment. The employer offered the employe a different assignment the next day which the employe, even though she failed to confirm with the employer that she was to go to the assignment, still attempted to report to on March 12. Such actions, by both the employe and employer, show clearly that neither considered the employe's March 8 refusal of work to have been a quit of employment. Third, although the employe had worked at only one site during her employment, changes in work sites is a common characteristic of work for temporary agencies."

At the time the employe rejected the Quad Graphics position she believed her lay off from Allen-Bradley might only be for two days. She indicated that she wanted to wait and see if she was called back. Such statement is not indicative of an intent to quit her employment. Further, the employer never indicated that pursuant to its policy she was deemed to have quit. Indeed, she was told to call back on Monday. The employer gave no indication that her rejection of the offer was being viewed as a quit. Further, there was nothing to indicate that the employe understood that she was considered to have quit once the employer told her to call back on Monday. Similarly, when the declined the telemarketer position she was not told that the employer considered her to have quit her position, but was told to contact the employer regarding the Allen-Bradley position later in the week.

Since the employe failed to perform work available to her in week 32 of 1997, her benefit eligibility must be reduced by the amount of wages she could have earned in that week had she performed available work offered to her. The best evidence in the record is that the employe could have worked thirty hours in week 32 of 1997 at $5.75 per hour for wages totaling $172.50. While the employer indicated other hours were possible, a possibility of additional hours is not sufficient. The employer's testimony contains requisite certainty to constitute due notice of work available for 30 hours of work. If benefits are claimed for week 32 of 1997, benefits paid must be reduced pursuant to Wis. Stat. § 108.05(3).

The employer, again relying on its contract of hire, argues that the employe had no right to refuse either position because she agreed to take such positions when she signed the contract of hire. As indicated, the contract of hire merely indicates that the employe will take any job paying at least minimum wage. The provisions of such "contract" are simply too vague to constitute knowing acceptance of any particular job assigned in the future. Indeed the department does not give effect to "contracts of hire" where the contract is not sufficiently detailed or specific to determine the conditions agreed upon. See Unemployment Compensation Directive 95-06, December 27, 1994.

The commission therefore finds that in week 32 of 1997 the employe did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 32 of 1997, the employe was with due notice called on by her current employing unit to perform work actually available within that week and was unable to perform, or unavailable for, some or all of such available work, within the meaning of Wis. Stat. § 108.04(1)(a).

DECISION

The decision of the administrative law judge is modified and affirmed. Accordingly, in week 32 of 1997 benefits will be reduced by including in the computation of benefits payable the amount of $172.50 as wages the employe would have earned had the employe performed all of the available work. The employe did not file a claim for unemployment insurance in week 32 of 1997.

Dated and mailed February 20, 1998
jacksjo.urr : 132 : 1 AA 110  VL 1007.05 VL 1025

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) In a decision issued this same date the commission has affirmed an appeal tribunal decision finding that the employe did not quit her employment in week 31 of 1997, but failed to perform all work available in that week.

(2)( Back ) The commission notes that if it were to find a quit, as did the administrative law judge, it would agree that she quit her employment, although not within the first ten weeks of working for the employer, with good cause attributable to the employer. The telemarketer position offered the employe constituted a decrease in wages from her last position and also offered as substantially less favorable rate than existed for similar work in her labor market. If an employe is assigned work that involves a decrease in rate of pay and the rate of pay is substantially less favorable to the employe than exists for similar work in the labor market, the employe has good cause attributable to the employer for quitting. See Cornwell Personnel Associates, Ltd. v. LIRC, 175 Wis. 2d 537 (Ct. App. 1993).

(3)( Back ) See also Hall v Cornwell Personnel Assoc., Inc., UI Hearing No. 94606005MW (Dec. 16, 1994), in which the commission stated:

"The employer maintains that the employe's failure to report to work as instructed constituted a quit. The employer maintains that the department has always held that when an employe fails to report to work as directed that his failure to report to work constitutes a voluntary termination. The commission disagrees. Rather, it is the circumstances of each case which are examined to determine whether the employe has shown an intent to leave the employment. Not every job refusal and not every failure to contact the employer on a date specified constitutes a voluntary termination of the employment relationship..."