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


KEITH A WATT, Employe

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99402272GB


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 as a material handler for three days for a customer of the employer, a staffing service. The assignment was to last up to one week. He worked full-time first-shift hours for $8.00 per hour. His last day of work was September 15, 1999. He called in sick on September 16. Later that day, the employer's human resource consultant offered him an assignment to begin as early as September 17 as a material handler. The position was for full-time first- shift hours for $8.00 per hour. He replied that he would think about it. He declined the position on September 25, 1999(week 39) because he wanted to attend other job interviews that were more career and long-term oriented, and which paid significantly more money.

The issue to be decided is whether the employe voluntarily terminated his employment and, if so, whether he quit his employment for any reason which would permit the immediate payment of unemployment insurance benefits.

The commission finds that the employe's failure to accept the assignment to begin as early as September 17, 1999 (week 38) amounted to a quitting. The employe's failure to continue performing work for the employer on an indefinite basis when work was available for him severed the employment relationship. Although the employe first gave notice that he declined the assignment on September 25, his quit was effective September 17, 1999 (week 38), as that was the day he could have begun the assignment and continued the employment relationship.

Under Wis. Stat. § 108.04(7)(e) the quit disqualification of Wis. Stat. § 108.04(7)(a) does not apply if the employe accepts work he could have refused under Wis. Stat. § 108.04(8), and quits with the same good cause and within ten weeks of beginning work. Wis. Stat. § 108.04(8)(d), provides that an employe has good cause for failing to accept work if the failure involved work at a lower grade of skill or significantly lower rate of pay than applied to the employe on one or more recent jobs, and the employe has not had a reasonable opportunity, in view of the labor market conditions and the employe's degree of skill to seek a new job substantially in line with the employe's prior job skill and rate of pay, not to exceed 6 weeks.

The employe was in this six week canvassing period when he began work for the employer. His previous position was as an assembler earning $8.55 per hour. He worked in that position from August 15, 1999 to September 1, 1999 (week 36). He began work for the named employer on September 13, 1999 (week 38), and quit his employment on September 17, 1999 (week 38). Thus, he accepted work and quit work within ten weeks after being unemployed. He therefore had a canvassing period of up to six weeks in which he could reject work at a lower grade of skill or significantly lower rate of pay than applied on one or more recent jobs. Wis. Stat. § 108.04(8)(d). A significantly lower rate of pay is a 20% reduction or more. The employe's wage rate of $8.00 was not "significantly" lower than his previous rate of pay. A position as an assembler is not lower in degree of skill than a material handler. However, before his two short stints as an assembler and material handler he worked as an Internet web designer from March 1, 1999 until June 1, 1999, and made $15.00 per hour. A drop from $15.00 to $8.00 is more than 20%. Wis. Stat. § 108.04(8)(d) refers to the grade of skill or rate of pay "on one or more recent jobs." The employe's other work experience included working on Internet web design and working as a graphic artist. Finally, a labor analyst testified at the hearing that suitable work for the employe would be the area of web site design and programming type jobs.

The commission therefore finds that the employe accepted work that he could have refused because that work was at a lower grade of skill and significantly lower rate of pay than on one or more recent jobs and he was within his canvassing period, and quit that job within ten weeks of beginning such work within the meaning of Wis. Stat. § 108.04(7)(e).

DECISION

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employe is eligible for benefits beginning in week 38 of 1999, if he is otherwise qualified. This matter is
remanded to the department to determine the employe's eligibility for benefits based on his rejection of the employer's offer of work in week 40 of 1999, unless otherwise resolved.

Dated and mailed February 10, 2000
wattke.urr : 132 : 6   SW 806 VL 1034

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


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