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


KATHLEEN J WOOD, Employe

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601552MW


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 she is otherwise qualified.

Dated and mailed May 26, 2000
woodkat.usd : 178 : 5   SW 844  VL 1025

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer argues that it offered the employe work assurance when her assignment ended consistent with DWD policy. The employe then quit when she did not take an offered assignment on January 12. The administrative law judge rejected this argument and found that the employment relationship ended when the employe ceased performing services for pay for the employer. He concluded that the lack of viable assignments in the period immediately following the end of her assignment caused the employment relationship to lapse. The commission agrees.

As explained in Jones v. Seek Inc, UI Hearing No. 99601034MW (LIRC July 6, 1999), the commission does not apply the department's temporary help policy which finds a continuing employment relationship simply because the employer promises some unspecified work in the coming week. Such department policies are not entitled to the full force and effect of law which a formally promulgated rule is entitled to. The issue of whether a continuing employment relationship exists following a layoff is resolved under established case law.

As a general rule, a worker who is laid off on an indefinite basis no longer has an employment relationship with the employer. A. O. Smith Corporation v. DILHR, 88 Wis. 2d 262, 266, 276 N.W.2d 279 (1979). However, when there is credible evidence that at the time of layoff there exists an assurance, express or clearly implied by circumstances, that work will be resumed at an ascertainable time in the not too distant future, the employment relationship continues. Id. at 267.

The employe in this case was assured a new assignment would be found for her within seven days of her layoff. However, in that seven days she was offered two unsatisfactory assignments outside her contract of hire, one was third shift and the other involved a wage $3 below her contracted rate. After these two offers, which she had good cause to refuse, no other assignment was offered for another week. Under the facts and circumstances of this case, it is clear that the employer's assurance of work in the not too distant future was not credible. There was no guarantee that the employer would ever find an assignment within her wage and shift requirements and the employer could not credibly assure such an assignment in advance because it had to wait for work orders to come in before it could offer them to her. By the time the school assignment arrived the employe was in her third week of unemployment and the employment relationship between the employe and the employer had lapsed. Therefore the employe did not quit her job but was discharged in week 1 of 2000.


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