CHRISTINE L SCHUELE, Employee
CORNWELL PERSONNEL ASSOCIATES LTD, Employer
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:
The employee worked for about four weeks as a lead floor worker for a client of the employer, a staffing agency. Her last day of work was June 14, 2002. On June 17, 2002 (week 25), the employer advised her that the assignment was ended. On June 18, 2002 (week 25), the employer told her about work as a packager for another client, a bakery, in Franklin, Wisconsin. The wage of the work was $8.00 per hour on the first shift. The employer testified that the proposed assignment was for forty hours per week. However, the employee was told by one of the employer's representatives that it was "on call" work, requiring a daily call in to see if work was actually available. The employee did not accept that work
The initial issue is whether, for unemployment benefit purposes, the employee quit her employment.
It is the employer's burden to show that it presented the employee with a bona fide offer of work. In order for an offer of work to be considered bona fide, it should be of such definite character that nothing more than a simple acceptance is necessary to form a contract of hire. K & H Construction, Inc., v. Ind. Comm. & Severson, Case No. 124-118 (Dane Co. Cir. Ct., March 8, 1968). A bona fide offer is one which is complete and requires no action on the part of the employee to complete it. Webber v. PA Staffing Ser. Inc., UI Hearing No. 99601291MW (LIRC June 9, 1999) (an offer which did not include the location of the job but which required the employee to contact the employer to learn it not a bona fide offer because not complete); Jordan v. Personnel Alternatives, Inc., UI Hearing No. 93610008MW (LIRC Sept. 2, 1994) (offer which stated the duties of the position, the wage rate, the starting date, and the hours of work is a complete and bona fide offer).
In this case, the only firsthand evidence about the job offer was that presented by the employee. She indicated that she was told that this work was to be on call, as work became available. The commission concludes that this was not a bona fide offer of work. The opportunity to call in on a daily basis to see whether any work exists for the particular day is not a bona fide offer of work. As such, the employee did not refuse a bona fide offer of work, rather she declined the opportunity to call in on a daily basis to see if there might be work. As such, the employer laid the employee off when her assignment ended and it was unable to extend a bona fide offer of work.
The commission therefore finds that in week 25 of 2002, the employee did not quit her work with the employer, within the meaning of Wis. Stat. § 108.04(7).
The commission further finds that in week 25 of 2002, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is modified to conform to the foregoing and as modified is affirmed. Accordingly, the employee is eligible for benefits as of week 25 of 2002, if otherwise qualified.
Dated and mailed January 30, 2004
schuech . urr : 145 : 1 SW 845.03
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. Rather, the commission modified the ALJ's decision because, based on the evidence in the record, it concluded that the employer failed to extend a bona fide offer of work to the employee. The commission agrees with the ALJ's conclusion that the United States Department of Labor's Unemployment Insurance Program Letters, (UIPL) no. 984, September 20, 1968 and UIPL 41-98, August 7, 1998, state that assignments beyond the first temporary help assignment are to be considered new work. However, the commission concludes that it is bound by Cornwell Personnel Associates, Ltd. v. LIRC, 175 Wis. 2d 537 (Ct. App. 1993) in which the court of appeals limited the circumstances in which the statutory exception contained in Wis. Stat. § 108.04(7)(e) could be applied to temporary help workers. In Cornwell Personnel Assoc., Ltd., the court found that the exception in question applies only to the first assignment a temporary help worker receives from a temporary help employer, and that quitting a second or subsequent assignment is not covered under § 108.04(7)(e) unless that assignment constitutes "new work." The commission notes that it is not precluded from considering, on a case by case basis, whether a subsequent offer of work by a temporary help agency gives the employee good cause attributable to the employer for quitting, depending upon the facts of the case.
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