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


LEHEBRON FARR, Employe

U W MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99603933MW


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, except that it makes the following modifications:

Paragraphs 11 and 13 of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW are deleted, and the following is substituted therefor:

The employe received unemployment benefits totaling $740.00, for weeks 21 through 24 of 1999. The employe was not eligible or entitled to these funds, within the meaning of Wis. Stat. § 108.03(1), but recovery of the resulting overpayment is waived due to departmental error. Specifically, the initial determination was the result of a departmental policy to the effect that limited term employment, by its very nature, cannot provide reasonable assurance of subsequent employment, within the meaning of Wis. Stat. § 108.04(17)(d). In other words, the Department of Workforce Development's position was that, as a matter of law, a limited term employe could not have reasonable assurance of work. However, reasonable assurance can be based upon past practices, and does not require the absolute certainty of a contract. It requires only a mutual and realistic commitment that the individual will be employed during the next term. Every person receiving the kind of letter the employe received, had the opportunity to return to work in the fall of 1999 per the instructions in the letter. Some did not do so because of unrelated reasons such as retirement, but it remains the case that the letter operated as a de facto guarantee of continuing employment in the subsequent year. In addition, employes initially would return to the same assignment they had had at the end of the previous year. Although there is the possibility that some assignments would change, that possibility does not negate the reasonable assurance of similar employment contemplated by the statute. Departmental error under Wis. Stat. § 108.02(10e) includes misapplication or misinterpretation of the law, and the department's position on limited term employes meets that definition.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, during weeks 21 through 36 of 1999, the employe is ineligible for benefits based upon any wages paid for work performed for the employer. Recovery of the $740.00 overpayment is waived.

Dated and mailed July 7, 2000
farrleh.umd : 105 : 1  ET 481  BR 335.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The dissent argues that departmental error was not present in this case, based upon the surmise that the adjudicator knew of a certain exhibit instructing the claimant to contact his supervisor two weeks prior to his return to work to receive his work assignment. Rather than speculate as to what information the adjudicator did or did not have in issuing the initial determination, the majority believes it is more appropriate to consider the information actually before the adjudicator. The adjudicator took a statement from the employe on May 14, 1999, in which the employe indicated that he had worked as a cook in the 1998-99 academic year, that he had been laid off from that position, and that he was supposed to return to the same position in August of 1999. The adjudicator then issued an initial determination which stated: "The employe has assurance of work in the fall of 1999. However, due to the nature of the limited term employment, he does not have reasonable assurance of work." Based upon the above, it simply is incorrect to assert that the adjudicator's decision was made without all of the relevant facts (as opposed to the majority's finding, that the adjudicator's decision was simply the reflection of a department policy regarding limited term employment).

 

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I write separately because while I agree that the employe does have reasonable assurance, I disagree with the majority that there was department error. The determination by the adjudicator read as follows "The employe worked for an educational institution in other than an instructional, research or principal administrative capacity during a school year or academic term. He does not have reasonable assurance that he will perform such services for an educational institution in the following academic year or term. The employe had assurance of work in the fall of 1999. However, due to the nature of the limited term employment, he does not have reasonable assurance of work. Effect Benefits are allowed. Note to the employe: You are required to notify the unemployment division when you receive reasonable assurance of similar employment with an educational institution."

Unlike the majority, I believe that the adjudicator made his decision without all the facts. I believe the adjudicator was not indicating that limited term employes could not have reasonable assurance but that he was not certain that the employe would perform the same services in the fall as he had before the summer break. The employe had worked as a cook and in housekeeping in the 1997-1998 school year and as a cook in the 1998-1999 school year. Exhibit 3 for the first hearing is a message from Scott Hoffland which indicates that the employe has a return to work date of August 2, 1999 but then it directs the employe to contact his supervisor 2 weeks prior to his return to receive his work assignment. I do not know if the adjudicator had that exhibit but if he did that would clearly explain why he believed he had assurance of work but not reasonable assurance. He was not told what his assignment would be so the adjudicator was not certain if he would be performing "such services" in the next term. If the majority was correct in their interpretation of the determination, that the adjudicator believed that as a matter of law a limited term employe can not have reasonable assurance, then it makes no sense for him to add the note to the employe telling him that once he receives reasonable assurance to notify the department.

For these reasons, I concur that the employe has reasonable assurance and dissent on the question of department error.


____________________________________
Pamela I. Anderson, Commissioner


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