Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Nancy L. Whitehead vs. LIRC and Midwestern Performance Assessment Center, Inc., Case Numbers 00-CV-280 & 00-CV-281 (Wis. Cir. Ct., Washington Co., December 6, 2000)

Digest Codes: AA 110  AA 115 AA 150

The employer administers clinical performance exams to nursing students from around the country. The exams are conducted in hospitals on weekends. The employee worked part time as an examiner.

In scheduling examiners the employer sent schedules to all examiners three times a year, three or four months prior to scheduled weekends. The examiners filled in the weekends they chose to work and returned the schedules to the employer. The employer compiled the schedules and returned them to the examiners showing when and where they would be working and indicating unfilled weekends. Examiners were asked to call the employer to fill openings. The employer contacted specific examiners by telephone to fill schedule openings that remained. These calls were made at least three weeks prior to the examination date.

The employee began work for the employer in May 1995 and worked approximately three weekends a month until May 1998, when she lost other employment. She then worked approximately one weekend a month and interviewed for out of town employment on other weekends. She applied for and received unemployment benefits. The employer offered the employee work for a number of other weekends in 1998 and 1999, which she declined. The commission found that the employee had been given due notice to report for work actually available and reduced her benefits by the wages she would have earned if she had performed that available work.

Held: Findings of fact made by the commission acting within its power are conclusive on the court. Credibility decisions are for the commission. The commission’s findings here are supported by credible and substantial evidence. The commission’s conclusions of law are entitled to some deference. Here the level of deference is immaterial since the court agrees with the commission.

"Due notice" is notice fairly and reasonably calculated to acquaint the employee with the existence of work that is available. The commission found that the three-week phone notice was clearly sufficient to acquaint the employee with the existence of available work and was likewise reasonable. The court agrees that the personal phone calls three weeks in advance are fair and reasonable notice, especially in light of the notice presented to the employee three to four months earlier by the blank schedules. To read an employee’s personal circumstances into the due notice requirement would destroy the uniformity and consistency needed to apply the statute in any rational manner. The employee received the same notice as all of the other examiners. An exception for the plaintiff is not warranted. Likewise it is unwarranted to conclude that the employee’s agreement with the employer prevented the employer from giving her due notice after she had satisfied her one weekend per month. Such an interpretation would imply an agreement to pay unemployment benefits up to three weekends per month. Such an agreement is illogical on its face. Commission decision affirmed.

[LIRC decision]

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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