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June 15, 1983


Appeal from a judgment of the Circuit Court for Dane County: William D. Byrne, Judge.

Gartzke, P.j., Dykman, J., and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Dykman

Appellants, former teaching assistants at the University of Wisconsin-Madison, appeal from the decision of the Department of Industry, Labor, and Human Relations denying their claims for unemployment compensation. We affirm.

Appellants raise the following issue: Is a graduate student who is performing independent study that will lead to a master's or doctor of philosophy degree, and who attends no class meetings, but meets with faculty advisers only as the progress of his or her research requires, "regularly attending classes" within the meaning of sec. 108.02(5) (i)1, Stats.? *fn1

Appellants are graduate students who were employed part-time as teaching assistants, project assistants, or research assistants by the university during the spring semester of the 1977-78 school year. Most of the appellants, with two exceptions, were doctoral candidates who had passed their preliminary examinations and were working on their dissertations. They were registered for two credits of independent thesis research or for two-credit graduate seminars, considered a fulltime load for doctoral candidates at the dissertation stage. Appellant Todd Bryan was working on a thesis for a master's degree and was enrolled in a three-credit course as an audit student. Appellant Vicki Carstens was a senior/graduate student and was taking a three-credit graduate independent study course. *fn2

None of the appellants was required to attend regularly scheduled class meetings. They met with their professors irregularly, whenever they reached a point in their work where they thought a meeting would be advisable. The frequency of meetings varied: Carstens saw her professor about once a week, while others saw their professors only once or twice during the semester, and a few did not meet with their professors at all. Appellant Bryan and the doctoral candidates who were enrolled in seminars also attended scheduled class or seminar meetings when they thought the material to be covered that day would be interesting or helpful to their own thesis work. All of the appellants testified that they made progress toward their degrees during the semester.

Appellants' employment with the university ended in late May, 1978. They filed claims for unemployment compensation benefits. The university contested their claims. The Labor and Industry Review Commission held that appellants were not entitled to receive benefits, because they were students "enrolled and regularly attending classes" at the educational institution that employed them, and thus were not in employment covered by the Unemployment Compensation Act. Sec. 108.02(5) (i)1, Stats. *fn3 The circuit court affirmed the commission's decision.

Section 108.02(5), Stats., defines the types of employment covered by the Unemployment Compensation Act. Section 108.02(5) (i) provides in part:

"Employment" as applied to work for an educational institution, . . . does not include service:

1. By a student who is enrolled and is regularly attending classes at such institution . . . .

The phrase "regularly attending classes" could mean attending regularly-scheduled class meetings or pursuing whatever course of study is necessary to obtain a particular academic degree. The statute is ambiguous. Wirth v. Ehly, 93 Wis. 2d 433, 441, 287 N.W.2d 140, 144 (1980) (statute is ambiguous if could be understood in two different senses by reasonably well-informed persons).

This court is not bound by an administrative agency's construction of a statute. Milwaukee v. ILHR Department, 106 Wis. 2d 254, 257, 316 N.W.2d 367, 369 (1982). The construction placed on a statute by the agency that must administer it, however, is entitled to great weight. Environmental Decade v. ILHR Dept., 104 Wis. 2d 640, 644, 312 N.W.2d 749, 751 (1981). In general, the reviewing court should not upset an agency's interpretation of a statute if the interpretation has a rational basis and does not conflict with the statute's legislative history, prior decisions of the court, or constitutional prohibitions. Dairy Equipment Co. v. ILHR Department, 95 Wis. 2d 319, 327, 290 N.W.2d 330, 334 (1980).

The commission's construction of sec. 108.02(5) (i)1, Stats., has a rational basis. The note to sec. 10, ch. 133, Laws of 1977, which repealed and recreated sec. 108.02(5) (f)-(i), states: "Changes the employment exclusions applicable to services for government units to exclude all such employment that can be so excluded under provisions of P.L. 94-566. . . . Clarifies applicability of permitted exclusions based on nature of employing entity for educational institutions and nonprofit organizations." *fn4

The note indicates that the legislature intended Wisconsin's Unemployment Compensation Act to be consistent with federal unemployment compensation law. The supreme court explained why the legislature would want such consistency in ...

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