STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

PATRICIA A HANKS, Employee

Involving the account of

COUNTY OF RACINE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 94606859RC


On September 14, 1994, the Department of Industry, Labor and Human Relations (department) issued an initial determination holding that the employe was on a voluntary leave of absence in weeks 34 and 35 of 1994.  Consequently, benefits were denied for those weeks.  The employe appealed and a hearing was held before an administrative law judge.  On October 20, 1994, the administrative law judge issued his appeal tribunal decision reversing the initial determination and holding that the employe was eligible for benefits in weeks 34 and 35 of 1994.  The employer and the department have petitioned for review of the appeal tribunal decision.

Based upon the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe is employed as a dietary support worker for the employer, a governmental unit which operates a nursing home.  She only works for the employer on an "on-call" basis on weekends.  During the week, she works part-time for another employer.

The employe gave the employer a note stating that she would not be available to work the weekend of August 20 and 21, 1994 (Saturday and Sunday), because she was going to be married that weekend. (Week 34 was the week ending August 20, and week 35 was the week ending August 27.)  The employe therefore did not work for the employer on August 20 or 21.  The employe filed for UC benefits for weeks 34 and 35 based upon her work for the other employer.  The employer provided evidence that work was available for the employe on August 21 and 27, but did not prove that work was available for the employe on August 20.

The issue is whether the refusal of an employe to work for a partial period of a week for one employer, bars the employe from receiving benefits for the week based on her work for another employer. Section 108.04 (1)(b)2., Stats., provides:

"(b) An employe is ineligible for benefits:
. . .
2. While the employe is on a voluntary leave of absence granted for a definite period, until the period ends or until the employe returns to work, which ever occurs first; . "

The Unemployment Compensation Manual provides at Vol. 3, Part VII Ch. 1, p.7:

"When the employe works on call or a variable schedule, a leave of absence under s. 108.04 (1)(b)2 applies when the employe asks not to be called or scheduled for a specific date or period of time."

Both the employer and the department contend that the employe is ineligible for benefits for the entire week of weeks 34 and 35 because she made herself ineligible for work one day of each of those weeks.  The department states that it treats an employe who is on leave of absence for a part of the week to be ineligible for the full week in which the leave of absence occurs.  However, the department does not give any authority for that proposition.  In addition, the department does not state whether that policy also applies to the present fact situation where an employe is working part-time for two different employers.

The administrative law judge allowed benefits on the theory that the employe was only unavailable for work for one day each week and that therefore benefits should not be denied "unless the employe is on a voluntary leave of absence granted for a definite period of time which extends for the majority of the work week." (Emphasis added.) The commission also disagrees with that rationale.

The commission concludes that the correct solution to this problem, as suggested by the department, is to deny benefits to the claimant to the extent that the claimant refuses work where work is available.  In this case, the employe worked on an "on-call" basis and therefore work was not always available for her from the employer.  The employer in this case did not prove that it had work available for the employe on August 20.  Therefore, under the rationale of this decision, the employe was eligible for benefits based on her work for the other employer for week 34 of 1994.  However, the employer did prove that it had work available for the employe on August 21 and 27.  Therefore, the employe's benefits for week 35 of 1994 should be reduced by the amount of wages that the employe could have earned had she worked those days.  The matter is remanded to the department for recalculation of the employe's benefits for week 35 of 1994.

The commission therefore finds that in week 34 of 1994, the employe was not disqualified for benefits as a result of being on a voluntary leave of absence, within the meaning of section 108.04 (1)(b)2. of the Statutes.

The commission further finds that in week 35 of 1994, the employe was disqualified for benefits as a result of a voluntary leave of absence under sec. 108.04 (1)(b)2., Stats., to the extent that work was available to the employe and to the extent that she refused that work.

DECISION

The decision of the appeal tribunal is affirmed in part and reversed in part.  Accordingly, the employe is eligible for benefits in week 34 of 1994, if otherwise qualified.  The employe is ineligible for benefits in week 35 of 1994, to the extent work was available to the employe in that week and to the extent that she refused work.  The amount that the employe received for benefits in week 35 should be reduced by the amount that she would have earned had she performed all the work available from the employer in week 35.  The case is remanded to the department for recalculation of the employe's benefits and/or liability for overpayment based upon the rationale of this decision.

Dated and mailed February 8, 1995.
198 : CD00177  AA 110   AA 128

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

 

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission reverses the appeal tribunal decision as a matter of law.

 

cc:  Gregory Frigo  Director
       Bureau of Legal Affairs

 


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