TRACY A COTO VALENTIN, Employee
VICI CAPILLI SALON, 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 issue to be decided is whether the employee received a bona fide offer of suitable work and, if so, whether the employee failed to accept any such offer, whether there was a failure to accept with good cause, and whether the employee was able to work and available for work.
The employee worked as a human resources assistant for approximately two and a half years in the employer's corporate division on a set schedule Monday through Friday, 8 a.m. to 4:30 p.m. In addition to these hours the employee also worked occasionally on Saturday and after normal work hours. Due to a reduced work load the employer absorbed the employee's position and the employee was offered a new assignment with one day per week where the employee would continue to perform her regular duties at the corporate office. The remaining four days the employee would be working as a customer service representative at the employer's salon. As such, the employee would continue to work as a full-time employee with the same rate of pay and benefits as she had as a full-time human resources assistant. The employee was concerned about the arrangement of hours in the new position. The employee was told that there would be a few weeks of training for opening and closing and that the employer would work with her on her hours.
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).
The employer did not establish that it made a bona fide offer of work to the employee. The employee wanted to know the arrangement of hours of the position. She was not given that information. The employer only indicated that it would work with her and she would not be closing every night. Indeed, the employer's director of operations testified at the hearing that the hours of the new position had not been determined.
The commission therefore finds that, in week 30 of 2011, the employee did not receive a bona fide offer of work, within the meaning of Wis. Stat. § 108.04(8)(a).
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2011, if she is otherwise qualified.
Dated and mailed March 27, 2012
valentr . urr : 132 : 1
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. None of the employer's witnesses testified that they told the employee the arrangement of hours in the new position. There is no evidence to support a finding that a complete and bona fide offer of work was made to the employee.
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