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


ROSE MILLER, Employe

BURNS INTL SECURITY SERVICES CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000458WU


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, if otherwise qualified.

Dated and mailed April 26, 2000
millero.usd : 105 : 1   - VL 1007 VL 1025

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer's representative asserts that the separation in this case was a quit by the employe and not a layoff by the employer. There is a gray area in situations where, as here, an employe of a temporary help employer goes "temporary to permanent" for the client of the employer for whom the employe had been working. The commission has developed criteria to analyze this kind of separation, though, enunciated in Parish v. Addeco Employment Services, Inc., UI Dec. Hearing No. 99003656BO (LIRC Feb. 28, 2000). The dissent asserts essentially that the Parish decision was limited to its facts. The commission will simply quote the Memorandum Opinion in Parish: "The commission has previously dealt with situations such as this where a temporary agency has an agreement with a client that allows the clients to hire the employe after a designated period of time. The employer must establish both that the employer had additional work available that the employe could have performed with another client and that the employe was aware that she could decline to accept employment with the client and continue such work with the employer." This analysis thus is not limited to the Parish decision itself, as the dissent implies. In fact, the commission utilized the exact same reasoning in its Memorandum Opinion in Robbins v. Seek, Inc., UI Dec. Hearing No. 99608437MW (LIRC Apr. 20, 2000).

The evidence in the record does not establish satisfaction of these conditions. First, the employe's entire employment, indeed, the reason she went and filled out the employment application, was to take a full-time position with the client. Second, as the administrative law judge found, the employer had an agreement with the client pursuant to which it would screen potential workers and, for a fee, provide oversight, monitoring, and payroll processing for the workers during the first 90 days. After that time, the employe would work directly for the client. The separation from the employer in this case, therefore, was pursuant to an agreement between the employer and client. For these reasons, and those stated in the appeal tribunal decision, the commission agrees with the appeal tribunal's conclusion of layoff.

NOTE: The dissent also asserts that there was no reason for the employer to offer evidence that it had additional work for the employe, that the employer had no reason to do so because this was a "quit-to-take" case (one of the exceptions to the general quit/disqualification of Wis. Stat. § 108.04(7)(a)). The initial determination in this case did not find a quit; it found a layoff by the employer due to the completion of an assignment with the client and a subsequent transfer of employment from the employer to the client. The hearing notice specifically listed that the issue was whether the separation from employment was a quit or a discharge. Finally, the above-cited commission precedent clearly gives notice that cases like this may ultimately be considered layoffs and not quits. Based upon all of these factors, there was full reason for the employer to have presented evidence regarding additional work available for the employe. Finally, the dissent attempts to distinguish the Parish case based upon contact in that case between the employer and client, and asserts that in the present case the employe was involved in following through with the paperwork for the client before the end of the relationship. In the present case, the employe's entire employment was with the client, and was for the purpose of taking a full-time position with the client. The employer's representative testified that the client reserved the option to hire the employer's employes. In the commission's view this makes the present situation more like that in Parish, rather than less.

cc: BORG WARNER SERVICES

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. While I signed Parish, I do not agree that decision developed a criteria to analyze this kind of separation. In fact the decision stated "under the facts of this case the employer discharged the employe and the employe did not voluntarily terminate her employment."

In this case, there is no reason for the employer to offer evidence that they had additional work for the employe because this is a quit to take case. The employe quit working for the employer so she could work for the client. She went to the employer because her sister told her that they had an open position for a full-time position as a weather stripper at Colby and Colby.

The employe testified "She told me it was a full-time job with the employer for 90 days and then Colby would take you on after that as long as your work record was good. The 90 days was up on 12/10. Colby and Colby gave me a letter stating that I would be put on as one of their employes "as soon as the next meeting was." I got the letter 2-3 weeks before 12/10. In regard to what I mean by when the next meeting was, Colby and Colby has a meeting. Ten-fifteen people from different areas go to this meeting and you fill out your papers. It is a meeting to fill out your initial employment paper work. I don't remember if I had to fill out another work application. In regard to whether I had to tell them whether I wanted to work for Colby and Colby when I got that letter, they knew I wanted to. I'd talked to the foreman previously to see if I was going to be hired as a full-time employe. He told me yes I would be as soon as the next meeting. One week later I got my letter stating I'd be hired. I did not have to give notice to Borg Warner. I didn't tell Borg Warner I was quitting my job with them. I told them I'd be going to the meeting to transfer over as a Colby and Colby employe."

While the Parish decision dealt with the contact between the employer and the client, in this case the employe was involved in following through with the paperwork for the client before the end of the relationship. The employe pursued the question of whether the client would hire her 3 or 4 weeks before the end of the 90 days. In Parish there was a concern about whether the employe knew about the transfer or the agreement between the employer and the client. In this case, that concern is not a problem because the employe clearly wanted to work for Colby and Colby.

For these reasons, I would find a quit to take and remand to see if the employe has requalified for benefits.

____________________________________
Pamela I. Anderson, Commissioner


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