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


KEVIN L RIEGER, Employe

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00401149OS


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 for about six weeks, most recently sorting cardboard, for a client of the employer, a staffing service. He earned $7.00 per hour. He last performed work for the employer on Friday, February 25, 2000 (week 9).

Prior to his last assignment, the employe had dried cars, earning $7.00 per hour. He also sorted aluminum earning $7 per hour. He also performed work as a finisher, earning $7.00 per hour. On February 25, a representative of the employer informed the employe that his assignment had ended. She told the employe that the employer would find him new work by March 3.

On February 28, 2000 (week 10), a human resource consultant working for the employer contacted the employe, and offered him work as a finisher in a client's bindery department, at the rate of $7.00 per hour, to start whenever the employe would be available. The employe told the consultant he would call her back to let her know if he would be available for that assignment. She also offered him an alternative one-day assignment (on February 28) loading and unloading trucks for a second client, at the rate of $7.50 per hour. The employe said he could not accept the February 28 assignment, because his daughter was ill. The consultant called the employe again later in the day on February 28 regarding the finishing assignment, but the employe was unavailable.

On February 29, the consultant called the employe with a third work offer, again loading and unloading trucks for the second client, to start March 1. The employe rejected the offer. The consultant then offered him a fourth work assignment, building pallets for a third client, at the rate of $7.25 per hour. The employe rejected this offer, and told the consultant he was not available to work for the employer.

The employe testified at the hearing that he quit his employment in order to move from Eden to Oshkosh. He was aware, however, that the employer had another office in Oshkosh. He did not contact that office until six weeks after his move, and worked at an assignment with that office for only one day. His appeal letter, which is part of the record of hearing, suggests he may have had a secondary reason for quitting his employment, related to his sense that the offered wages were too low.

The uncontested testimony of a labor market analyst established that, for the position of "utility person," (analogous to the finisher job offered with the first client), the wage that defined the bottom quartile of wages for similar work in the employe's labor market area was $7.80 per hour. For the position of "laborer," the wage that defined the bottom quartile for similar work was $8.60 per hour.

Uncontested labor market analyst testimony also established that, for the position of "freight handler," (analogous to the truck loading and unloading assignment offered with the second client), the wage that defined the bottom quartile of wages for similar work in the employe's labor market area was $7.80 per hour. Finally, labor market analyst testimony established that, for the position of "woodworking shop laborer" (analogous to the pallet building assignment offered with the third client), the wage that defined the bottom quartile of wages for similar work in the employe's labor market area was $8.09 per hour.

The issue which must be decided is whether the employe's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The statutes provide that if an employe terminates his or her employment with an employing unit, the employe's benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employe has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination fell within some statutory exception. The employe contended that his quitting fell within some statutory exception to the general quit disqualification, and that he was entitled to the payment of benefits. The commission disagrees.

The ALJ noted that the employe refused the three job assignments because he wanted to move and he believed that his wages at his temporary employment were too low. The ALJ noted that the labor market evidence demonstrates that the wages for all four jobs offered were in the bottom quartile of wages paid for similar work in the employe's labor market area. Consequently, the ALJ found that although the employe quit when he refused to accept any of the offered assignments, the employe would have had good cause for not accepting the work in the first place and that consequently he quit within ten weeks of starting that work with the same good cause within the meaning of Wis. Stat. § 108.04(7)(e). The ALJ then found the employe eligible for benefits.

The department filed a timely petition for commission for review of the appeal tribunal decision. The department argues that the appeal tribunal decision should be reversed because the employe's quitting was not for any reason which would allow the immediate payment of benefits. The department asserts that the ALJ erred because she failed to apply the holding in the Court of Appeals case of Cornwell Personnel Associates v. LIRC, & Robert E. Linde, 175 Wis. 2d 537 (Ct. App. 1993). Specifically the department argues that the ALJ's rationale was analogous to that rejected by the court. The department contends that Wis. Stat. § 108.04(9)(b) was not applicable because that exception applies to the refusal to accept new work. Further a second assignment could be "new work" if it was made after an indefinite layoff.

The commission has previously stated:

"Since Linde, both the department and the commission have followed this ruling which holds that the 'quit/labor' standards exception found in Wis. Stat. § 108.04(7)(e) applies only to the first assignment a temporary help worker receives upon starting 'new work' with a temporary help employer. Quitting by refusing or leaving the second and any other subsequent assignments is not covered under a 108.04(7)(e) analysis unless the second and subsequent assignments themselves constitute new work. Linde at pg. 550. The Linde court noted that a second assignment could be new work if it is made after an indefinite layoff, citing Allen-Bradley v. DILHR, 58 Wis. 2d 1, 6 (1973). Furthermore, the commission has also recognized that a subsequent assignment, even if made immediately, would be 'new work' triggering the direct application of labor standards, if the 'duties, terms or conditions of the work offered by the employer are not consistent with the existing contract of hire between the employer and the worker'. See Keith P. Leighton v. Cornwell Personnel Associates, Ltd., (LIRC 6/29/94), citing Kabacinski v. Cornwell Personnel Associates, Ltd., (LIRC 1/8/90)."

Jeremy J. Adams v. St. Croix Valley Temp Services, UI Claim No. 97201190EC (LIRC, March 27, 1998).

Wis. Stat. § 108.04(7)(e) is not applicable in this case. The assignments were subsequent offers but not new work.

The commission therefore finds that, in week 10 of 2000, the employe terminated his work, within the meaning of Wis. Stat. § 108.04(7)(a), but that his quitting was not for any reason which would allow for immediate benefit payment. The commission further finds that the employe was paid benefits in weeks 10 through 17 of 2000, totaling $1,972.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22 (8)(c), because the overpayment was the result of a departmental error, resulting from a clear misapplication of the law and the overpayment did not result from the fault of the employe as provided in Wis. Stat. § 108.04 (13)(f).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is ineligible for benefits beginning in week 10 of 2000, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times weekly benefit rate which would have been paid had the quitting not occurred. The employe's overpayment of $1,792.00 has been waived.

Dated and mailed August 8, 2000
riegeke.urr : 145 : 1  SW 844  VL 1025  BR 335.01

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing but reverses the decision as a matter of law.

cc: DIRECTOR GREG FRIGO
BUREAU OF LEGAL AFFAIRS


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