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


PAUL K NELSON, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00602848MW


On March 17, 2000 the Department of Workforce Development issued an initial determination which held that the claimant's failure to call the telephone initial claims system prior to March 13, 2000 was not due to an exceptional circumstance. The claimant filed a timely request for hearing on the adverse determination, and hearing was held by telephone on May 8, 2000 before a department administrative law judge. On May 11, 2000, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The Department of Workforce Development filed a timely petition for commission review of the adverse appeal tribunal decision. By June 29, 2000 order, the commission remanded the matter for further hearing. That hearing took place on August 30, 2000; the matter is again before the commission and is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about two months as an apprentice bricklayer for an employer operating a masonry contracting business. His last day of work was March 3, 2000 (week 10). Although he claimed benefits for week 11 of 2000, the calendar week ending March 11, he did not file his weekly telephone claim certification with his public employment office for that week until March 13, 2000 (week 12).

When the employee reported for work on Monday, March 6, 2000 (week 11), he was told that there was no work and that he would be notified when to report. It was expected that work would be available on Tuesday or Wednesday. The employee was not contacted again until Friday, March 10, 2000 (week 11), at which time he was informed that there was no immediate prospect of work and he should consider looking elsewhere for a job. He earned an hourly wage of $22.31, and he had not initiated a new claim earlier because a few days of work would make him ineligible for benefits. He subsequently telephoned the department to initiate his claim but received a message that the system was down.

The issue presented is whether there was compliance with the notice requirements of the law for the period at issue.

Wisconsin statute 108.08(1), provides that a worker will be eligible for benefits only if notice of unemployment is given in the manner prescribed by department rules. The statutes are implemented by Ch. DWD 129 of the Wisconsin Administrative Code, which provides that the notice requirement is satisfied as of the first week that a worker initiates a claim or files a continued claim after a break in the claim by a failure to file a claim for a given week, if weekly claim certifications are then filed within the time frames set forth in the code. The notice requirement may be waived if exceptional circumstances are established.

Section DWD 129.01(4) defines what constitutes an exceptional circumstance justifying waiver of the timely notice requirement:

(4) WAIVER; EXCEPTIONAL CIRCUMSTANCES. The department shall waive the requirements of this chapter if exceptional circumstances exist. Exceptional circumstances include, but are not limited to the following:

(a) An error relating to the claimant's giving of notice made by personnel of the department, or a reasonable misunderstanding by the claimant based on information given to the claimant by the department.

(b) Action by an employer, in any manner, directly or indirectly, instructing, warning or persuading the claimant not to file a benefit claim.

(c) The claimant did not comply because the claimant was not aware of the duty to notify the department and the claimant's most recent employer failed to post or maintain any notice as to claiming unemployment benefits which has been supplied to the employer as required under s. DWD 120.01.

(d) The claimant performed services as a school year employee in other than an instruction, research or principal administrative capacity and had reasonable assurance of performing services for the employer in a similar capacity in the 2nd academic year or term but was subsequently not offered the opportunity to perform such services.

(e) The claimant made an unsuccessful attempt to access the telephone initial claims system during a week when the system was inoperable or was unavailable for more than 40% of the time the system is scheduled to be staffed by claimstakers during the week. The times during which the system is inoperable or unavailable will be measured as follows:

1. Each day during the week will be divided into half hour time periods, beginning with the time when the system is first scheduled to be staffed by claimstakers and ending with the time when the system is scheduled to no longer be staffed by claimstakers.

2. The system will be considered to be inoperable or unavailable for any such half hour time period during which a busy signal occurs or during which the system is not operating.

The claimant could not recall exactly when he telephoned the telephone initial claims system. He thought he called around 1:00 p.m. on Friday and again on Saturday, on both occasions receiving a message that the telephone claims system was "down." Department records indicate, however, that at no time on Friday or Saturday of week 11 was the initial claims system "down" between 7:30 a.m. and 4:30 p.m. In addition, at no time during that time period were sufficient lines busy to prevent a claimant from having successfully accessed the system. Thus, by operation of Wis. Admin. Code § DWD 129.01(4)(e), no exceptional circumstance justified the claimant's failure to give notice of unemployment, within the meaning of Wis. Stat. § 108.08(1), in week 11 of 2000, and the commission so finds. The commission also finds that the claimant was paid benefits of $297.00 for week 11 of 2000, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). The commission finds, finally, that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c) because the overpayment was the result of departmental error and did not result from claimant fault as provided in Wis. Stat. § 108.04(13)(f). Specifically, it was error for the administrative law judge to find that exceptional circumstances exist in the circumstances testified to by the claimant, without considering Wis. Admin. Code § DWD 129.01(4)(e) and the Department of Workforce Development TIC Busy Signal Report for the week in question.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant is ineligible for benefits in week 11 of 2000. Repayment of the benefit overpayment is not required, however, for the reasons stated above.

Dated and mailed November 22, 2000
nelsopa.urr : 105 : 1 CP 360  BR 335.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc:
GREG FRIGO DIRECTOR
BUREAU OF LEGAL AFFAIRS

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. At the first hearing the employee testified "I did not claim unemployment on the first Monday or Tuesday was that I had been given the impression that I would be returning to work quickly. I did not think it was worth claiming if I would be able to work two days that week. That is the reason I did not claim right away. I was not told until the end of the week that I should look for another job. I don't recall whether I got that call on Thursday or Friday. I tried calling unemployment on Friday, but they said something about the system being down or the computers were down. I think I called about 1 PM on Friday afternoon. I tried on Saturday, but got the message that the system was down. I think I did not get through until Sunday evening."

Exhibit 3 at the first hearing was the employee's explanation as to why his request was late. He wrote "My employer told me that I would be off on Monday and Tuesday. But, that wasn't the case. I ended up being off all week. So that was why my claim was late Sorry for the inconvenience." The employee did not mention anything about the system being down in that response.

We remanded the case to take into evidence the TIC Busy Signal Report for the time of the employee's claim. In week 11, the system only had busy signals and/or "system downs" on Monday of that week. Thus the employee could not have received that kind of message if he called on Friday or Saturday. Since the employee was calling in an initial claim, I take notice of the fact that the automated initial claims system is available during the following hours: Sunday 9:00 AM to 5:00 PM, Monday-Friday 6:00 AM-7:00 PM and Saturday from 9:00 AM -2:30 PM. If the employee called in after 7:00 PM on Friday, he would not have been able to file his claim. His testimony was uncertain as to the time he called. If he had appeared at the second hearing, he might have been able to pin down the time. The administrative law judge believed the employee was credible. The employee also wrote "some of it" as a qualifier after he checked "yes" to a question did you read the handbook?

While I found that the employee was generally credible, I believe he was likely mistaken about when he called the department. He never said he got a busy signal so I infer that he called the department after 7:00 PM on Friday night and after 2:30 PM on Saturday. Thus, I would find that there is no department error because the administrative rules under DWD 129.01(4)(e) did not come into play. The employee first mentioned he didn't file on time because he believed he would earn too much in the week to receive benefits because he thought he would work in the latter part of the week. For the first time at the hearing he mentions something about the system or computers being down. In order for that to be true it would have been after the time it was scheduled to be staffed by claimstakers.

For these reasons, I would find that there was no department error and the employee is responsible to repay the $297.00 he received for which he was ineligible.

_____________________________________
Pamela I. Anderson, Commissioner


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