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

Subject: Badger Fence Division Of Olla Enterprises, Inc., a Wisconsin Corporation (Hearing No. 94602904MW) v. Labor And Industry Review Commission and Charles B. Diekoff   (Wis. Cir. Ct., Milwaukee Co., August 1, 1995)

Digest Codes: SW 844  SW 845

The employe worked for over 16 months as a fence installer for the employer, and was paid $8.00 per hour. The employer laid him off due to the winter season as of December 23, 1994. On March 14, 1995, the employer sent him a one-sentence letter instructing him to report to work on March 21, 1995. No details of this "job offer" were set forth in the letter. The employe did not report on that day, and the appeal tribunal held that his failure to do so was with good cause because the wage was non-prevailing pursuant to Wis. Stat. § 108.04 (9)(b). The commission affirmed and the employer appealed, asserting: (1) that the letter did not detail what the wage would be, so there could be no finding that it was non-prevailing; (2) that the employe was laid off for a definite period (the winter), so the offer was not for "new work" under Wis. Stat. § 108.04 (9); and (3) even if labor standards applied, there was no credible evidence to support an inference that the wage was non-prevailing.

Held: The circuit court affirmed the commission. First, it was reasonable to infer that the offer was for the same wage as the employe had received when he had been laid off. Second, the layoff was for an indefinite period, even though at the time of layoff it may have loosely been considered to be for the winter season. Thus, the offer was for new work. Third, a labor market analyst credibly testified that the $8.00 per-hour wage was in the bottom quartile for fence installers.

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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