Ashleson v. Labor & Industry Review Com'n

Decision Date09 December 1997
Docket NumberNo. 11,D,No. 97-1346,11,97-1346
Parties, 123 Ed. Law Rep. 912 Mary ASHLESON, Kelly Barthman, Wendy Bowe, Noel Capra, Dorothy Chenal, Janet Chladek, Nancy Cooper, Janette Cysewski, Donnis DeLong, Mary Donatelle, Sharon Edwards, Nila Fransway, Beth Gerth, Tracy Grant, Rena Gravunder, Linda Hefty, Amy Henderson, Sandra Hilger, Diane Hodgson, Jan Hoehne, Connie Hovland, Chris Hulback, Raynelda Jaworski, Carol Kallstrom, Terry Kelzer, Joan Klatt, Wanda Knez, Nancy Koosmann, Rachel Kumferman, JoAnn Larson, Kelley Lake, Barbara Lathrop, Sheri Lloyd, Becky Loofboro, Gayle Lunsmann, Debra Lyons, Kristy Maher, Linda Meyers, Julie Miller, Russell Minnich, Carla Musil, Colleen North, Rebecca Nyara, Melody Nyman, Rebecca Ockler, Bonnie Pannier, Jeanne Parker, Kathy Phelps, Janet Pingel, Patricia Purfeerst, Marge Rettenmund, Polly Rudi, Kathy Ruhde, Sharon Schutz, Julie Severson, Kris Squier, Mary Thibado, Connie Voeltz, Lena Vranak, and Penny Waltner, Plaintiffs-Respondents, v. LABOR & INDUSTRY REVIEW COMMISSION, Defendant-Appellant, Cooperative Educational Service Agencyefendant. . Oral Argument
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of and orally argued by Earl G. Buehler of Madison.

On behalf of the plaintiffs-respondents, the cause was submitted on the brief of and orally argued by Melissa A. Cherney of Madison.

On behalf of the defendant, the cause was orally argued by Stephen L. Weld II of Eau Claire.

Before CANE, P.J., and MYSE and HOOVER, JJ.

HOOVER, Judge.

The Labor & Industry Review Commission appeals the circuit court's judgment reversing LIRC's decision denying unemployment compensation to the respondent teachers. 1 The teachers worked for Head Start during the 1994-95 program year. At the end of the term they applied for unemployment compensation. "School year employees" who are given a reasonable assurance of employment during the next program year are not eligible for unemployment benefits for the period between successive academic years. LIRC denied benefits, concluding, and now contending on appeal, that the teachers were school year employees who had received reasonable assurances of similar employment for the next Head Start program year. A school year employee is one who performs services for an educational service agency under an employment contract extending less than one year. The trial court held that they did not perform services under an employment contract and were therefore not school year employees. We disagree and conclude the teachers performed services under an implied, at-will employment contract extending for less than one year and were therefore school year employees. We therefore reverse the trial court.

We are also required to decide an issue not reached by the trial court: whether the teachers had a reasonable assurance of performing similar work during the next academic year. We conclude as a matter of law that they had such an assurance. We therefore reinstate LIRC's decision denying the teachers unemployment benefits.

Cooperative Educational Services Agency No. 11 (CESA) administers the Head Start program and employed the teachers during the 1994-95 program year. All but one of the teachers 2 had been employed in the Head Start program prior to the 1994-95 program year. On or about May 4, 1995, CESA sent the teachers letters tentatively offering them employment for the 1995-96 Head Start program year and describing the position and location of the assignment. After the program year ended, the teachers also received an Employee Wage Statement, or what LIRC referred to as a "fact sheet," which advised each employee as to pay, vacation and the period of employment. The teachers timely accepted the tentative offer. As their respective employment terms ended for the 1994-95 program year, 3 each respondent filed for unemployment compensation benefits.

Section 108.04(17)(c)1 and (f), S TATS., provide that a school year employee of an educational services agency 4 is ineligible for unemployment benefits for any week of unemployment that occurs during a period between two successive academic years or terms if the school year employee performs services for an educational services agency in The parties have endured vacillating results to this point of the litigation. This is undoubtedly a consequence of the reasonable and intuitively appealing but incompatible positions they each espouse. The Department of Industry, Labor and Human Relations initially determined that the teachers worked for an educational services agency during a school year or academic term and had reasonable assurance of performing such services for an educational services agency in the next academic year or term. It thus denied the teachers' applications for benefits. The teachers filed a request for a hearing before an appeal tribunal at which the administrative law judge concluded that they performed services under an employment contract that did not require the performance of services on a year-round basis and were therefore school year employees. This conclusion rested upon the determination that § 108.02(22m), STATS., does not require a written employment contract. The ALJ agreed with the teachers, however, that they did not have a reasonable assurance of reasonably similar work for the entire 1995-96 school term because funding had not yet been secured for the last half of the year. It therefore reversed the department's initial determination denying benefits. The teachers then petitioned LIRC to review the appeal tribunal decision.

                the first such year or term and there is reasonable assurance that the employee will perform services for an educational services agency in the second year or term.  Section 108.02(22m) STATS., defines "school year employe" as an employee of, inter alia, an educational service agency who "performs services under an employment contract [that] does not require the performance of services on a year-round basis."  (Emphasis added.)   We are called upon to interpret this subsection

LIRC determined that the letter offering reemployment and the fact sheet "illustrate a mutual understanding between the parties regarding the performance of services for remuneration under an employment contract" and the teachers were therefore school year employees under § 108.02(22m), STATS. In considering whether the teachers were offered reasonable assurances of performing similar work in the next program year, LIRC first found that, while the funding for the last half of the 1995-96 Head Start term was uncertain to some degree, it was nonetheless "as definite as it could possibly be given the nature of the program's fiscal year ...." It considered such relative definiteness together with established practice, the employment relationship between the parties, the letters offering employment and the fact sheets and concluded that cumulatively they demonstrated the teachers received reasonable assurance of future employment.

The teachers appealed to the circuit court. The teachers received an Employee Wage Statement that contained a disclaimer that states, "This data sheet is intended for information purposes only and neither it, CESA # 11 practice, nor other communications create an employment contract or term." The trial court held that this disclaimer evinced CESA's intent not to be bound by a contract and therefore no contract could be implied. It concluded that the teachers were not school year employees because they were not performing services under an employment contract, and thus reversed LIRC. 5


The issues primarily require the application of a set of facts to a statute, which is a question of law. 6 The teachers contend that LIRC has minimal experience in interpreting and applying § 108.02(22m), STATS., because it was only recently enacted.

They concede that the agency has had some experience interpreting the "reasonable assurance" requirement, but its decisions have not been substantially uniform, long-standing and without challenge. For these reasons, the teachers contend that this court should accord no deference to LIRC's determination of the two issues.

At oral arguments, LIRC conceded that it has not had significant experience with § 108.02(22m), STATS. It nonetheless appears from LIRC's written decision that it has had at least some occasion to interpret § 108.02(22m) 7 and, in particular, the phrase "performing services under an employment contract." 8 Considering LIRC's concession, together with evidence of some experience with this issue, we conclude that it is one of nearly first impression. We afford "due weight" to such determinations. Bunker v. LIRC, 197 Wis.2d 606, 612, 541 N.W.2d 168, 171 (Ct.App.1995).

Where a legal question is intertwined with factual determinations or with value or policy determinations, courts defer to the agency that has primary responsibility for the determination. Sauk County v. WERC, 165 Wis.2d 406, 413, 477 N.W.2d 267, 270 (1991). The commission's written decision demonstrates both a long history of interpreting and applying the "reasonable assurance" requirement and the policy considerations concerning its application. 9 Its determination on that issue is therefore entitled to great deference. Bunker, 197 Wis.2d at 611, 541 N.W.2d at 171.


To determine whether the teachers were school year employees, we must first decide whether they provided services under an "employment contract." The teachers first assert that the phrase "employment contract" is a term of art and implies a written contract. Nothing, however, in either the statute or in case law requires that the contract be in writing. Indeed, the teachers' contention, unsupported by any citation, is contrary to established authority. Wisconsin recognizes oral employment...

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