STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


NANCY L WHITEHEAD, Employe

MIDWESTERN PERFORMANCE ASSESSMENT CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99607528MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe has worked for the employer, a business that administers performance exams to nursing students, for about four years as an examiner.

The employer administers nursing examinations on the weekends in Milwaukee, Racine, and Madison. Three times a year the employer mails a list of potential exam dates and sites to the examiners, who can sign up to work as many days as they like, provided they work at least 12 weekends a year. The list is sent out approximately three to four months in advance of the exam dates. After the examiners submit their requests, the employer sends a new list showing dates which are unfilled, and examiners can sign up for these additional dates if they choose. In the event the employer still has slots unfilled, it contacts individuals by telephone to request their services on specific weekends. These calls are made at least three weeks prior to the testing date.

Up until May of 1998 the employe generally worked about three weekends a month for the employer. However, in May of 1998 the employe lost her other full-time employment. The employe then began working only one weekend a month for the employer, primarily because she was out of town on the weekends in order to attend Monday or Friday job interviews. The employe stated that she scheduled her interviews on those days because the UI office had advised her that she could not be gone more than two days in a week in order to receive benefits. Department records indicate that the employe initiated a claim for UI on June 10, 1998 (week 24).

The employer telephoned the employe to see if she could work on August 21-23, 1998 (weeks 34-35), and on October 11, 1998 (week 42), but the employe was unavailable because she had scheduled job interviews on those weekends. In each instance the telephone call was made at least three weeks prior to the testing date, as the employer requires a minimum of three weeks to schedule students for the exams. The employer also telephoned the employe and offered her work for January 17, 1999 (week 4), April 23-25 (weeks 17-18), May 9 (week 20), June 18- 20 (weeks 25-26) and June 25-27 (weeks 26-27), but the employe was not available on any of those dates due to her job interview schedule.

In early August of 1999, the employer called the employe and offered her work on August 20-22, 1999 (weeks 34-35), and seven additional weekends, September 17- 19 (weeks 38-39), September 24-26 (weeks 39-40), October 8-10 (weeks 41-42), October 22-24 (weeks 43-44), November 12-14 (weeks 46-47), November 19-21 (weeks 47-48), and December 10-12 (weeks 50-51), but the employe was not available for work on any of those weekends. (1)

Wisconsin Statute 108.04(1)(a) provides, in relevant part:

"An employe's eligibility for benefits shall be reduced for any week in which the employe is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employe would have earned as wages for that week in such available work as wages earned by the employe and shall apply the method specified in s. 108.05(3)(a) to compute the benefits payable to the employe. The department shall estimate wages that an employe would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employe."

The question to decide is whether the employe was with due notice called upon by her current employing unit to report for work actually available during the weeks at issue and whether the employe was available for that work.

"Due notice" refers to notice that is fairly and reasonably calculated to acquaint the employe with the existence of the work that is available. UI Benefits Manual, Vol. 3, Part VII, Chapter 3, Section F, November 1991, page 3. Here, the employe received telephone calls notifying her of the dates on which work was available and offering her a specific opportunity to work on those dates. Such notice was clearly sufficient to acquaint the employe with the existence of the work available to her.

In addition to putting the employe on notice of the availability of the work, the notice itself must be reasonable. For example, it is generally not considered reasonable to provide notice of work an hour before the work is to begin. Id. In this case, the employe received three or more weeks notice of each assignment and, in some instances, was given notice of the work months in advance. The amount of notice given the employe was certainly reasonable, and although she may have already arranged for job interviews on the dates in question, this personal circumstance does not render it otherwise.

The commission, therefore, finds that in weeks 34, 35, and 42 of 1998, and weeks 4, 17, 18, 20, 25, 26, 27, 34, 35, 38, 39, 40, 41 and 42 of 1999, the employe was with due notice called upon by her current employing unit to perform work actually available and was unavailable for or unable to perform such work, within the meaning of Wis. Stat. 108.04(1)(a).

The employer's pay rate for a 3-day weekend is $445, plus $50 a night when the employe stays over night. For UI purposes, however, Friday and Saturday fall into one week and Sunday into another, so that each full weekend of work must be split into two separate weeks. It is not entirely clear from the record into what week the wages should be attributed, nor is it clear when the employe would have earned travel allowances and to what weeks those allowances should be attributed. Consequently, the commission is unable to determine the amount of wages the employe would have earned had she performed all of the work available to her during the weeks in question. This matter is, therefore, remanded to the same administrative law judge for further hearing and a new decision with respect to the amount of wages the employe would have earned had she performed all of the work available to her, what, if any, overpayment results, and on the question of department error.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe's benefits for weeks 34, 35, and 42 of 1998, and weeks 4, 17, 18, 20, 25, 26, 27, 34, 35, 38, 39, 40, 41 and 42 of 1999 shall be reduced by the wages she would have earned had she performed all of the work available to her in those weeks. This matter is remanded to the administrative law judge for further proceedings consistent with this decision.

Dated and mailed May 3, 2000
whitena.urr : 164 : 1  AA 110

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission's decision to reverse the appeal tribunal decision is not based upon an assessment of the credibility of the witnesses, but is the result of a differing interpretation and application of the unemployment insurance law under essentially the same set of facts as that found by the appeal tribunal.

cc: ATTORNEY DANIEL R SCHOSHINSKI
SHNEIDMAN MYERS DOWLING BLUMENFIELD EHLKE HAWKS & DOMER

ATTORNEY JENNIFER S MIRUS
BOARDMAN SUHR CURRY & FIELD LLP


Appealed to Circuit Court. Affirmed December 6, 2000. [Circuit court decision summary]

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Footnotes:

(1)( Back ) Weeks 43 of 1999 and after are the subject of a separate determination(s).