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

LISA M MAURER, Employe

WILMOT UNION HIGH SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604421RC

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, if otherwise qualified.

Dated and mailed September 2, 1999
maureli.usd : 132 : 7  ET 481

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employe did not have reasonable assurance of returning to work for the employer in the 1999-2000 school year. The commission has reviewed the record in this matter and agrees with the appeal tribunal's findings of fact and conclusions of law. The employe's discussion with Ms. Collins at the end of the school year did not constitute assurance that she would be performing similar work in the 1999-2000 school year. This is not a case where a well-established custom of re-employment each year can satisfy the reasonable assurance requirement. The employe assumed she would be returning. However, the law does not deny benefits based on an employe's assumption. It is the employer's obligation to provide assurance to the employe that she will be returning to similar work in the up coming school year. The employer did not provide such assurance. A discussion about what the employe may potentially receive as a raise does not constitute assurance that she will be working in a similar position, which would pay at least 80 percent her former wage, with average hours of at least 80 percent of the hours she worked in the prior school year. A mere statement to the employe that the employer will re-employ her in the following year at the same position at the same or greater wage and for the same number of hours would suffice to constitute reasonable assurance. The employer admittedly did not provide any such statement.

Finally, the commission notes that it cannot consider the facts of a separate case in determining whether reasonable assurance is given in this case. It is extremely rare where two separate hearings are held and the same precise facts are established at both hearings. The commission doubts that the employe and this other claimant worked the exact amount of time as each other or had the exact same conversation with the exact same individuals, or that any other pertinent facts were so alike as to require that the same outcome be reached in both cases.

For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

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