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


DIANE KOEPKE, Employe

CORNWELL PERSONNEL ASSOC LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606001MW


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 as of week 27 of 1998, if otherwise qualified.

Dated and mailed: November 20, 1998
koepkdi : 132 : 6   SW 844   EE 440

/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 the employe voluntarily terminated her employment with the employer with good cause attributable to the employer. The employer states in its petition that the employe's dissatisfaction with the offered position is "not our concern." While this may be true, it is obviously a concern for the employe. The employe did not wish to work a 12-hour shift. The only labor market evidence introduced into the record established that for the position offered the employe and similar work, a 12-hour shift is substantially less favorable to the employe than exists for similar work in her labor market. This combined with the fact that it was a departure from her prior work with the employer gave the employe good cause attributable to the employer for terminating her employment.

The employer states that the employe signed a "contract of hire" which essentially states that the employe would accept any work with the employer as long as it paid minimum wage. The commission has previously held that such a "contract" is simply too vague to constitute knowing acceptance of any particular job assigned in the future. See Joeann Jackson v. Cornwell Personnel Associates LTD, UI Dec. Hearing No. 97607140MW (Feb. 20, 1998). Indeed, the department does not give effect to "contracts of hire" where the contract is not sufficiently detailed or specific to determine the conditions agreed upon. See Unemployment Insurance Directive 95-06, December 27, 1994.  In addition, the United States Department of Labor has recently issued an Unemployment Insurance Program Letter (UIPL) advising states on how states are to apply the prevailing conditions of work requirement. In UIPL No. 41-98, August 17, 1998, the Department of Labor dealt with the situation where the "new work" definition might be avoided by contracts such as that utilized by the employer. The Department of Labor stated:

UIPL 984 [which defined new work] further provides that `an attempted change in the duties, terms or conditions of the work, not authorized by the existing employment contract, is in effect a termination of the existing contract and the offer of a new contract.' (Emphasis added.) UIPL 984 did not, however, recognize that, if an employer requires a contract providing for constantly changing conditions, then the prevailing conditions requirement would be nullified. A common- sense understanding of the term `new work' includes performing different work, even if the employment contract provides for performing such different work. Further, by accepting this as a condition of obtaining employment, the individual would, in effect, be forced to waive the protections under the prevailing conditions requirement as a condition of accepting a job. For these reasons, UIPL 984 is supplemented by the following: No contract granting the employer the right to change working conditions may act as a bar to determining that "new work" exists.

UIPL No. 41-98, item 4.b.

Further, in specifically discussing temporary work the Department of Labor stated:

Just as it applies to other refusals of work, the prevailing conditions requirement applies to refusals of offers of temporary work. The fact that the work is temporary should generally be sufficient to trigger a prevailing conditions inquiry. Also, as noted in item 4.b., `new work' may not be limited by an employment contract which grants the employer the right to change an employment condition. Therefore, a refusal of temporary work in the form of a new assignment from a temporary help firm is also subject to the prevailing conditions requirement.

UIPL No. 41-98, item 6.

Thus, the fact that the employe signed a "contract of hire" does not prevent considering the protection of labor standards provision as part of determining whether the employe had good cause connected with her employment for terminating her work. (1)

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


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Footnotes:

(1)( Back ) Although the language of UIPL No. 41-98 indicates that states are to apply the labor standards provision in determining whether the employe's quitting permitted immediate benefit payment, because of the decision in Cornwell Personnel Associates, Ltd. v. LIRC, after the first assignment, the labor standards provision must be used in combination with Wis. Stat. § 108.04(7)(b).