JONATHAN E HARNLY, Employee

PLANT MARKETING LLC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. The Department filed a timely petition for review.

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:

The employee worked eleven months as a bindery worker for a printing business earning $9.00 per hour. That job ended on October 11, 2001 (week 41). Prior to that the employee performed landscaping work and earned $9.00 per hour.

On November 6, 2001, the employee applied for a position with the employer as an assistant grower. The employer decided not to fill that position but on November 26, 2001 (week 48), offered the employee work as a plant waterer earning $7.50 per hour. He refused the offer due to the low wage.

The wage of the position offered was not substantially less favorable to the employee than existed for similar work in his labor market. However, given the employee's background a broad area of work is suitable to him. The employee's labor market contains a large number of employers. It would take the employee 8 to 10 weeks to canvass his labor market. Therefore, it would be 8 to 10 weeks before he would need to lower his wage expectation below $9.00-$10.00 per hour.

The commission finds that the employee had good cause to refuse the offered work. The offered work paid $1.50 less per hour than his most recent positions. The employee's wage expectation was not unreasonable. The employee was only in his seventh week of unemployment. Finally, the position involved a lower grade of skill than his previous work.

The commission therefore finds that in week 48 of 2001 the employee failed to accept an offer of suitable work with good cause, within the meaning of Wis. Stat. § 108.04(8)(a), and that he was able to work and available for work, within the meaning of Wis. Stat. § 108.04(8)(e).

The decision of the administrative law judge is modified to conform to the foregoing findings and, as modified, is affirmed. Accordingly, the employee is eligible for benefits as of week 48 of 2001, if he is otherwise qualified.

Dated and mailed April 30, 2002
harnljo . urr : 132 : 1 : SW 800  SW 825.15  SW 875.05 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The Department argues that the ALJ erred in finding the employee had good cause for refusing work based on the canvassing provision contained in Wis. Stat. § 108.04(8)(d). The commission has modified the appeal tribunal decision to clarify that the employee was not in his canvassing period when he refused the offer of work. However, the commission applies a "sliding scale" to determine whether an employee had good cause to refuse an offer of work after the six-week canvassing period. The courts have previously upheld the commission's application of such sliding scale. See, DILHR v. LIRC, 193 Wis. 2d 391 (Ct. App. 1995);  Hubert v. LIRC, 186 Wis.2d 590 (Ct. App. 1994). The commission agrees with the ALJ that given the length of the employee's unemployment, his work history, and the conditions of work in his labor market, he had good cause to refuse the offer of work.

Note: The synopsis indicates that two exhibits were received into the record. A file notation suggests that prior to reaching the commission the original file was misplaced. The exhibits are not in the record. The synopsis indicates, however, that the exhibits were prior statements by the employee that would merely confirm his testimony. The commission has therefore proceeded with its review without the exhibits.

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uploaded 2002/05/10