DAWN K. ENGEL, Employee

NORTHCENTRAL TECHNICAL COLLEGE, 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 claimant performs services as a part-time assistant for the Phillips Campus of North Central Technical College. She has worked for the employer since October 29, 2007 and works 28 hours per week, earning $13.41 per hour.

By contract with the employer, the claimant works 45 weeks per year. According to the employer's witness, the employer's Campus Regional Director determines when the claimant is to work dependent upon the needs of the campus. The employer failed to bring any payroll records to establish the claimant's actual weeks of work in relation to the class schedule for the academic year and summer session but testified that the school year begins on August 18 and ended on approximately May 19.

When classes are in session, the claimant assists students. As mentioned, she also performs service when classes are not in session. Specifically, the claimant helps individuals using the Job Center services; assists W-2 clients with childcare, rent assistance and interviews; assists with DVR clients and the Disability Navigator and assists with the employer's other community partnerships.

Departmental records reflect that the claimant filed a claim for unemployment insurance benefits on August 5, 2008 (week 32), reporting a layoff on August 1, 2008 (week 31) from the employer. Her base period for computing her eligibility for benefits consists of the third and fourth quarters of 2007 and the first and second quarters of 2008. The employer's wages are the only wages in her base period.

Wis. Stat. § 108.04(17)(d) provides:

A school year employee of an educational institution who performs services other than in an instructional, research or principal administrative capacity  [⁽¹⁾ ] is ineligible for benefits based on such services for any week of unemployment which occurs during a period between 2 successive academic years or terms if the school year employee performed such services for any educational institution in the first such year or term and there is reasonable assurance that he or she will perform such services for any educational institution in the 2nd such year or term.

The employer petitioned the appeal tribunal decision alleging that the claimant is a school year employee and is subject to a denial of benefits within the meaning of Wis. Stat. § 108.04(17)(d) because the claimant was assured of a return to her position.

Thus, the issue before the commission is whether, as of week 32 of 2008, the employee was a school year employee who had reasonable assurance, within the meaning of Wis. Stat. § 108.04(17)(d).

In order to decide whether a reasonable assurance analysis before and after the break is material, the base period services must be determined to be those in "school year employment." See Torrey Jr. v. City of Stevens Point, UI Dec. Hearing No. 06002857WR (LIRC, April 27, 2007). ⁽²⁾   In this case, since the claimant's services for the employer were not only in the base period but also before and after the summer recess, whether the claimant performed services as a school year employee for the employer is a prerequisite to determine whether reasonable assurance was provided.

Wis. Stat. § 108.02(22m) provides that a

"School year employee" means an employee of an educational institution or an educational service agency, or an employee of a government unit, Indian tribe, or nonprofit organization which provides services to or on behalf of an educational institution, who performs services under an employment contract which does not require performance of services on a year-round basis.

The employer's argument that the claimant is a school year employee hinges upon her quantitative work requirement of 45 weeks per calendar year and its claim that it hired the claimant under a contract as a "school year employee." It supported its claim that the claimant was a "school year employee" with its assertion that her position was defined as such by union contract. However, the contract was not actually offered as evidence.  (3)   Yet even if the claimant's employment agreement provided as alleged, it does not control the actual finding of whether the claimant is a "school year employee" within the meaning of Wis. Stat. § 108.02(22m). Specifically, in Robert Klein et. al. v. Simplicity Manufacturing Inc., UI Dec. Hearing No. 89602189MWG (LIRC February 27, 1990), the commission explained,

In Roberts v. Industrial Commission, 2 Wis. 2d 399 (1957), the Wisconsin Supreme Court held that conditions of eligibility for unemployment compensation are not subject to collective bargaining agreements or other private contracts. This is not to say that employers and employes may not negotiate contractual provisions that will affect unemployment compensation eligibility; however, where there is a specific statutory condition of eligibility (in this instance, a requirement that claimants are not on a voluntary leave of absence), the determination of such issues as whether a leave of absence occurred and whether any such leave was voluntary, are issues the resolution of which are the exclusive province of the Department, the Commission and, ultimately, reviewing courts, if any.

Instead of relying on what the employer or the employee says the claimant is, the commission must look at the facts themselves to determine whether the claimant falls within the definition found at Wis. Stat. § 108.02(22m).

In Ashleson et al. v. LIRC and CESA # 11, 216 Wis. 2d 23, 32; 573 N.W.2d 554 (Ct. App. 1997), the Wisconsin Supreme Court stated that the school year employee definition was "clear and unambiguous," requiring an employment contract that does not require performance of services year-round. In this case, the claimant's contract requires she work 45 weeks per calendar year and so it would seem to meet the Ashleson criterion.

Yet, while one of the factors discussed in the definition is the amount of work per year, a "second factor" of the definition has been reviewed before determining whether a worker is a "school year employee." The second factor is the "connection" or "integration" of the claimant's work with the employer's educational program or goals as it relates to the Wis. Stat. § 108.02(22m) language of providing "services to or on behalf of an educational institution."

For example, in Suprenand v. Moraine Park Vocational Technical & Adult Education District, UI Dec. Hearing No. 02000535FL (LIRC September 19, 2002), the commission required more than just the quantitative analysis of the amount of work per calendar year, finding that a educational employee who worked 47 weeks of the year was "not a school year employee" because the employee's unemployment was not tied to any customary vacation or between terms period, she was not restricted to working during the school year and was not off work because of the employer's summer, holiday or other customary break period.

This additional factor analysis also has support in Farrell v. LIRC and Marathon County Handicapped Children's Education Board, 147 Wis.2d 476; 433 N.W.2d 269 (Ct. App. 1988). In Farrell, the court had to determine the applicability of Wis. Stat. § 108.04(17)(b); in doing so, it analyzed parallel language of "services to or on behalf of." In particular, the employees in Farrell were counselors, whose funding was through DPI with some federal monies from JTPA. The counselors worked through the Youth Employability Services program and the Teen Parenting program. The services were performed both in and out of the school environment. The court found that the counselors' services were "to or on behalf of" a nonprofit or public educational institution within the meaning of Wis. Stat. § 108.04(17)(b) for the following reasons:

• the counselors were essentially employed by the school district,
• the programs the counselors worked for were part of the school districts compliance with state statutes regarding having programs and services for "children at risk" and
• an approach of finding them to be "school year employees" was consistent with LIRC's treatment of the matter.

Similarly, the underlying commission decision concluded that the counselors

were in the class of employees defined in sec. 108.04(17) [footnote omitted] because the services they provided were an integral part of the school districts' attempt to met the needs of the at-risk students and were performed on behalf of the school districts, even though contracted through a different party. Farrell at pages 480-481, with emphasis added.

In Wabnitz v. Oshkosh Public School, UI Dec. Hearing No. 03404679AP (LIRC July 20, 2004), the commission used the same approach, finding that the claimant was not a "school year employee" because:

• the employee's services were not tied to the school district in an educational capacity (i.e. the services of officiating of adult basketball and adult softball games were for the employer's adult recreation department) and
• those services were not tied "timing wise" to the school year.

Finally, in Higgins v. Milwaukee Public Schools, UI Dec. Hearing No. 07604581MW (LIRC November 30, 2007), the commission refused to "split up" work into categories of "school year employment" and "not school year employment," where the employer did not negotiate separate contracts connecting certain positions to certain duties to the school year. It further found that all of the employee's work was not as a "school year employee" where it was performed in a capacity of "other than an instructional, research or principal administrative capacity" and where the employee's unemployment was not directly attributed to school recess but due to budget cuts and contaminated sites.

In this case, while the claimant's duties for the employer appear to be more "integrated" with the educational institution than the services involved in Wabnitz or Higgins, the commission still finds that claimant is not a school year employee, within the above statutory definition. Specifically, given the claimant's services in the "other than" category, the language resulting in a denial of benefits should be strictly construed; Wis. Stat. § 108.04(17)(d) was an "opt in" provision from the federal public law. See Unemployment Insurance Program Letter No. 43-93 (UIPL 4-87), issued April 23, 1993. In this context, with some of the claimant's duties in a community service role, rather than an educational goal of the school or its programs; for example her services when classes are not in session for the job center, the W-2 client applications for childcare, assistance with rent, camera interviews, the DVR services and the Disability Navigator, the commission finds that employer has failed to meet its burden to establish that the employee was a "school year employee" within the meaning of the above. See also Schulte v. Franklin Public School, UI Dec. Hearing No. 99604704 (LIRC September 3, 1999)( it is the employer's burden to establish disqualification under the reasonable assurance provisions).

The commission therefore finds that the employee did not perform services for the employer as a "school year employee" within the meaning of Wis. Stat. § 108.02(22m).

The decision of the administrative law judge is affirmed. Accordingly, as of week 32 of 2008, the employee is eligible for benefits based upon her services for the employer, if otherwise qualified.

Dated and mailed October 31, 2008
engelda : 150 ET 481

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The employer petitioned the appeal tribunal decision. The commission has rewritten the decision in this matter to address the petitioner's claims and to explain the commission's basis for the finding that the claimant did not perform services as a "school year employee" within the meaning of Stat. § 108.02(22m).

cc: Northcentral Technical College, Phillips Campus

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(1)( Back ) The paragraphs of Wis. Stat. § 108.04(17) are divided by type of employer, type or capacity of employment and the period of unemployment involved. The nature of the claimant's services are used to determine whether they are to be categorized as (1) in an instructional, research or principal administrative capacity, or (2) in other than an instructional, research or principal administrative capacity. Part III B of the Disputed Claims Manual, Volume 3, Part VII, Chapter 7, Section B, (dated April 23, 2007), provides that teachers/professors, substitute teachers, tutors, educational advisors, educational counselors and coaches and their respective duties fall within the instructional, research or principal administrative capacity, while teacher aides, custodians, cafeteria workers, clerical workers, bus drivers, scorekeepers, referees and umpires and their respective duties fall within the "other than" an instructional, research or principal administrative capacity. Based upon the description of the employee's duties, the "other than" category is appropriate.

(2)( Back ) Specifically, the reasonable assurance provisions require the removal of base period school year employment wages from a claimant's computation of benefits when the claimant's work satisfies the criteria set forth in Wis. Stat. § 108.04(17); conversely, all school year base period wages should remain in the computation for benefits if reasonable assurance does not exist. Sarah J. Corona v. Kenosha Public School and Racine Unified School District, UI Dec. Hearing Nos. 06605019RC and 06605020RC (LIRC, April 13, 2007).

(3)( Back ) With its petition, the employer offered a copy of a position announcement, description and benefits summary. The announcement and summary made reference to the position as "school year." The commission will not consider these documents and will not remand for an additional hearing as there is no evidence that the employer was improperly limited in any way from presenting evidence at the first hearing and the offered materials are not "newly discovered."

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