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

Subject: Milwaukee Public Schools v. LIRC and Linda Spingola (Hrg. No. 97605720MW), No. 98-CV-002635 (Wis. Cir. Ct., Milwaukee Co., November 20, 1998) Patricia D. McMahon, Circuit Judge

Digest Codes: ET 481

The employe worked as a student teacher for the employer, an educational institution, beginning in August 1996. The regular classroom teacher went on maternity leave. The employer asked the employe to be a substitute for the regular teacher since the employe knew the children. This was a second grade classroom in an elementary school. The substitute position started on January 30, 1997. The employe worked each school day for the rest of the school year. She was paid regular substitute pay of $115.73 per day. Beginning April 25, 1997 she received an additional $13.51 per day in vacancy pay. That pay began when the regular teacher exhausted her sick pay and decided not to return. The employe was paid through June 13, 1997.

On June 9, 1997 the employer asked each substitute if they wished to be included on the substitute roster for the next school year. The employe applied for unemployment benefits on July 6, 1997. On August 29, 1997, she advised the employer that she had accepted a full time job with another employer.

The commission found that the employe did not have reasonable assurance of performing services in the next school year and was therefore eligible for benefits for the period beginning with the week ending June 14, 1997.

Held: The commission's decision is entitled to great weight. The commission reasonably found that the employer's evidence of availability of work or the likelihood of vacancy was unclear. There was no evidence of the criteria used by the employer to determine which substitute teachers would be called. No evidence shows that a definite vacancy or permanent assignment was made available to the employe. There was no assurance that the 80% standard would be met. The finding of no reasonable assurance must be sustained. Benefits allowed.

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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