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


LINDA L HOELZEL, Employe

LITTLE CHUTE AREA SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401684GB


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 23 of 1999, if otherwise qualified. At the hearing testimony was presented raising the issue of a separation of employment in April of 1999, specifically a suspension or termination by the employe due to a physical inability as a result of her medical illness. As such, the commission remands that issue for investigation.

Dated and mailed December 7, 1999
hoelzli.usd : 105 : 1  ET 481

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the administrative law judge's conclusion that the employer did not provide reasonable assurance to the employe of substitute work in the 1999-2000 school year, within the meaning of Wis. Stat. § 108.04(17)(a). The employer's Director of Business Operations testified that the employe was not sent anything in the summer to say she would be kept on the employer's active substitute list; nor was the employe told she would start to be called back to work in the fall. The employe had only worked for the employer for one year, and that is an insufficient length of time for the practice between a district and its teachers to rise to the level of past practice necessary to constitute informal reasonable assurance of continued work in the subsequent academic year.

In addition, the employe did not have reasonable assurance, because of the difference in the past assignments from the straight substitute teaching in the 1999-2000 year. The employe had a long-term assignment in 1998-99, an assignment which constituted just over 20 percent of the employe's substitute teaching that academic year. The employe did not receive reasonable assurance of any long-term substitute work for the 1999-2000 academic year. Pursuant to Spingola v. Milwaukee Public School, Hearing No. 97605720MW (LIRC 3-12-98) (affirmed, Milwaukee County Circuit court 11-20-98), an employe on a substitute teaching list has reasonable assurance in the subsequent year only if the teacher's long-term substitute work in the previous year was less than 20 percent of the teacher's total employment in that year.

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision. The commission notes, finally, that the matter is to be remanded for investigation of the employe's suspension of employment due to her medical illness.

NOTE: The dissent first argues that this was not a "reasonable assurance" case, that the employe quit when she asked to be off work for an indefinite period of time. The employe did not ask to be off for an indefinite period of time, however; rather, she asked only to be off for the remainder of the 1998-99 year, because she was too weak to work from the chemotherapy treatments she was undergoing in the spring of 1999.

The dissent also asserts that, even using the reasonable assurance standard, the employe had reasonable assurance because the commission has "looked at the dollar amount a person makes from one school year to the next rather than to simply say that if a person had 20 percent long term assignment in one year that they must be guaranteed it in the next year." This assertion by the dissent proves the matter. In this case, the employe's daily pay for the long-term assignment was $129.61; her daily pay for short- term substitute assignments was $60.00. The percentage of her income from long-term assignments thus would be higher, than a percentage which simply compares the number of days at each kind of substitute assignment.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I do not believe that this is properly a reasonable assurance case. The employe called the employer and told them to take her off the substitute teacher list for the rest of the year because she was unable to teach because of her medical treatment. The employe testified "I did call them, probably Lois, at the end of March or beginning of April to ask for my name to be removed from the sub list due to medical reasons. We didn't discuss a date when I could start again. I just said I couldn't be called for the rest of the year but would like to be a sub on this upcoming year list. I think I was to call them to verify that I wanted to be on their list.After talking to her I thought I would automatically be on the list."

I believe the employe quit when she asked to be off for an indefinite period of time. Reasonable assurance does not apply to employes who quit. In this case the employe was going to call the school to reestablish an employment relationship by telling them when she was able to go back to work. She did not do that. She notified the unemployment office that she was able to work.

Even if we apply the reasonable assurance standard, the employe believed she would be on the sub list. In Exhibit 1, the employe said "I would expect to be on the sub list for the following school year. I wil (sic) be calling them before school starts." I believe we have looked at the dollar amount a person makes from one school year to the next rather than to simply say that if a person had 20% long term assignment in one year that they must be guaranteed it in the next year. If a person had long time substitute work for the entire year, it would be impossible for the employe to earn within 80% of the last years wages without long term substitute work the following year because long term assignments pay more. This employe had had only a short amount of a long term assignment so she could have made up for it in more assignments. Also this employe refused some assignments because she worked for more than one school district.

For these reasons, I would reverse and find that the employe quit prior to the end of the school year so there was no employment relationship at the end of the school year. Therefore, we should not apply the reasonable assurance statute.

___________________________
Pamela I. Anderson, Commissioner


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