BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
In the matter of the
unemployment benefit claim of
JANE E LAMBIOTTE, Employe
Involving the account of
KELLY SERVICES INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-401464GB
On May 31, 1990, an Appeal Tribunal issued a decision, affirming a Department Deputy's Initial Determination, and holding that in week 13 of 1990, the employe failed, without good cause, to accept an offer of suitable work, within the meaning of sec. 108.04(8)(a), Wis. Stats., and denying benefits. This decision resulted in an overpayment of $135. On June 6, 1990, the employe timely filed a petition for review.
Based on the applicable law, records and evidence in this case, the Commission makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe worked during about seven months on an assignment as a clerical worker for the employer, a temporary services business. Her last day of work was Friday, March 23, 1990 (week 12), when she was laid off at the end of her shift because the business of the employer's customer was sold.
On her last time card the employe indicated she had been laid off. The record does not disclose when the time card was turned in or when the employer received it. The employe made no other effort to contact the employer at that time. On Monday morning, March 26, 1990 (week 13), the representative of a prospective employer, Employer's Health Insurance, contacted the employe to invite her to interview for a permanent position. She discussed the position with the representative for about 20 minutes. At the end of the call, the employe was instructed to contact the prospective employer by telephone the following morning at 8:00 a.m.
On Monday, subsequent to the employe's contact from the prospective employer, the employer contacted the employe and offered her an assignment to begin immediately and to continue for an indefinite period. The pay would be about $5.00 hourly. She refused the assignment because of the short notice and because of her expected interview the following day.
On Tuesday, March 27, 1990, the employe contacted Employer's Health by telephone at 8:00 a.m. at the end of the call, she was instructed to appear in person the following morning, Wednesday, March 28, at 9:00 a.m. for testing and interviewing. On the same day she initiated a claim for unemployment benefits. She subsequently filed a claim for the calendar week ending March 31, 1990 (week 13) and was paid benefits in the amount of $135 for such week.
On Wednesday, March 28, before the employe left her home for the interview with Employer's Health, the employer contacted her and informed her it had an assignment for her. The employe interrupted and explained that she would be interviewing that day and, therefore, could not accept the assignment. The employer's representative responded, "Fine, let us know either way when you are available or if you get the permanent position." The employe then left for Employer's Health for the interview which lasted until approximately noon that day. Employer's Health informed her that they had other people to interview and would be making their decision over the weekend. The employe had no contact with either the employer or the prospective employer for the remainder of the week.
The issue presented is what effect, if any, the employe's failure to accept the assignment from the employer has on her eligibility for unemployment compensation benefits.
The policy of the department and the Commission with respect to labor suppliers and workers therefor is that the rights or obligations incidental to an employment relationship exist between the employer and the employe while the employe is actually assigned to a job. The employment relationship continues in each case until a job assignment is complete, and the employe applies to the employer for further assignments. If at that time no work is available, the relationship ceases. If work is available, the relationship continues unless broken by the employe.
In this case the employment relationship was not broken. The employe worked on a long-term assignment and not on a day-to-day basis. The employe finished her assignment on a Friday evening, but did not contact the employer on Monday morning for another assignment. However, the employer did contact her on Monday morning for another assignment to begin that day. As work was available for the employe on the next work day following completion of her last assignment, the employment relationship was not terminated. In this circumstance, the issue then is resolved under the work available section, sec. 108.04(1)(a), Wis. Stats., which provides:
"(a) An employe shall be ineligible for benefits for any week in which the employe is with due notice called on by his or current employment unit to report for work actually available within such week and is unavailable for work or unable to do his or her work."
Here the employe refused the assignment to begin on Monday, March 26, because she would be interviewing with the prospective employer the following day and because of the short notice. As chance would have it, she also interviewed for the position again on Wednesday. Her desire to make an effort to obtain full-time permanent employment is laudable. However, she was not available for the employer's work that week, although provided with notice of the work.
The Commission therefore finds that in week 13 of 1990, the employe was with due notice called on by her current employing unit to report for work actually available within such week and that she was not available for work, within the meaning of sec. 108.04(1)(a), Wis. Stats.
The Commission further finds that the employe was paid benefits in the amount of $135 for week 13 of 1990, for which she was not eligible and to which she was not entitled, within the meaning of sec. 108.03(1), , Wis. Stats., and that, pursuant to sec. 108.22(8)(a), , Wis. Stats., she is required to repay such sum to the Unemployment Reserve Fund.
DECISION
The decision of the Appeal Tribunal is modified and, as modified, is affirmed. Accordingly, the employe is ineligible for benefits for week 13 of 1990. She is required to repay the sum of $135 to the Unemployment Reserve Fund.
Dated and mailed September 25, 1990
115 - CD1012 AA 100 VL 1025
/s/ Kevin C. Potter, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
MEMORANDUM OPINION
The Appeal Tribunal decision has been modified to comport with department and Commission policy as to issues concerning temporary help suppliers. In this case there was no termination of the employment relationship between the employer and the employe because there was no break in the work available for the employe. In such case the issue for a failure to accept a job offer under sec. 108.04(8) is not applicable. The only issue here is whether the employer had work available for the employe and whether the employe was available for that work.
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