ROSE A WODACK, Employee

MEDICAL STAFFING NETWORK INC, 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:

In late June 2003, the employee started working intermittently for the employer, a temporary health care staffing business. She performed services as a certified nursing assistant at various facilities for the employer.

On July 23, 2003 (week 30), the employer offered the employee work at a Green Bay, Wisconsin nursing home on August 10, 2003 (week 33). The shift was eight hours in length and paid $14.00 an hour. The employee declined the work because there was a dog at that facility and she has a severe allergy to animals. The employer was aware of her allergy. The employee worked for the employer at other facilities on other days in week 33 and earned wages totaling $358.50.

Wis. Stat. § 108.04(1)(a) provides for a reduction in unemployment insurance benefits in any week in which a worker is called upon by their current employing unit, with due notice, for work that is actually available and the employee is unable or unavailable for such work. Under this statutory section, the amount of wages the worker could have earned performing the work is added to the wages that were actually earned to reduce the benefit entitlement for that week. Wis. Stat. § 108.05(3)(a) provides the formula for the reduction.

The issue to be decided is whether the employee was with due notice called upon by her current employing unit to report for any additional work actually available in week 33 of 2003 and, if so, whether she was available for that work and the amount of wages she would have earned in that week by performing all of the available work.

Since the employee did perform other work for the employer in week 33 of 2003, the employer was a current employing unit as required by Wis. Stat. § 108.04(1)(a). The employee agreed that she refused the August 10 work but contended her eligibility for benefits in week 33 should not be reduced by the $112 she could have earned. This contention must be sustained. "As a general rule, work is not actually available when the employer is unable to provide conditions in which an employe can work with reasonable comfort." Linneman v. Steel Forms Construction, Inc., UI Dec. Hearing No. 94001195MD (LIRC June 3, 1994). In Linneman, the issue was whether construction work was "actually" available, when the work was offered during extreme cold and the employee was not required to work due to the weather. In rejecting the finding that work was available, the commission found that the conditions of the offered work actually negated its availability. Similarly, given the employee's severe allergy to animals, the work at the facility with a dog was not actually available to her.

The commission therefore finds that in week 33 of 2003, the employee was not with due notice called upon by the current employing unit to report for additional work actually available within the week, within the meaning of Wis. Stat. § 108.04(1)(a).

The decision of the administrative law judge is reversed. Accordingly, the employee's benefits for week 33 of 2003 shall not be reduced by the wages she could have earned had she worked on August 10, 2003.

Dated and mailed May 14, 2004
wodacro . urr : 150 : 1   AA 110

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge prior to issuing this reversal decision. The commission has not reversed the ALJ based on a differing assessment of witness credibility or demeanor but because it reaches a different legal conclusion on essentially the same facts found by the ALJ.

cc: Medical Staffing Network, inc. (Green Bay, Wisconsin)

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uploaded 2004/05/18