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


LUIS C GOMEZ, Employe

WILMOT UNION HIGH SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604551RC


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 the 1998-1999 school year as a student supervisor for the employer, a school district. He last worked June 8, 1999 (week 24). The next academic year begins on August 30, 1999 (week 36).

The employe's position was one of two, new in the 1998-1999 school year. He has a contract of employment, exhibit A. The past practice with the other position was to sign the contract at the beginning of the next school year. There was sufficient funding for the employe's position and no indication that the employe would not be asked to return for the 1999-2000 school year.

The employe was not offered a contract and had no positive contact from the employer regarding the upcoming school year. He received casual "hoping you will come back" comments from individuals. He did have discussions with the superintendent of schools, assistant principal and principal, before the end of the 1998-1999 school year. He was told that they could not say for sure, but they would like to have him back.

The issue to be decided is whether the employe has reasonable assurance of performing services for the employer in the next academic year.

Wisconsin Statute § 108.04(17)(a)(1) provides in substance that a school year employe of an educational institution who provides services for or on behalf of such an institution in other than an instructional, research, or principal administrative capacity is ineligible for benefits based on such services for any week of unemployment which occurs during a period between two successive academic years or two terms, if he or she performed such services in the first academic year or term and has reasonable assurance of performing such services for an educational institution in the second such academic year or term.

Reasonable assurance is defined as:

"[A] written, verbal or implied agreement that the employe will perform services in the same capacity during the ensuing academic year or term. . . ."

H. R. Rep. No. 1745, 94th Cong. 2d Sess. (1976), reprinted in U. S. Code Cong. & Ad. New, 5997, 6036.

The commission must find, however, that the employe has not in fact received assurance from the employer that he will be performing services in the upcoming school year. The employer testified that there was no formal communication with the employe regarding the next year. The fact that the employer did not tell the employe it would not want his services in the next year does not constitute assurance that it will use his services in the next year. The employe's one year of prior service for the employer is simply insufficient to constitute a long-standing well-established pattern of reemployment upon which to base a finding of reasonable assurance. Finally, the employe testified that in his conversations with members of the administration they indicated they were unable to state that he would be asked back.

Reasonable assurance does not exist simply because the employer does not tell the employe that the employer will not be utilizing the employe's services in the upcoming school year. The burden is still on the employer to provide assurance that the employe will be performing similar services in the next academic year. It is not sufficient that the employer believes the employe will be performing services for it in the next school year. Such belief must be communicated to the employe.

The commission therefore finds that the employe performed services in other than an instructional, research, or principal administrative capacity for an educational institution during an academic year or term, but that, as of week 24 of 1999, the employe did not have reasonable assurance of performing such services in the next academic year or term, within the meaning of Wis. Stat. § 108.04(17)(d).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 24 of 1999, if he is otherwise qualified.

Dated and mailed October 28, 1999
gomezlu.urr : 132 : 6 : ET 481

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission does not disagree with any credibility determination made by the ALJ but reaches a different legal conclusion when applying the law to the facts.


gomezlu.urr

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