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


RAFAEL BALDERAS, Employee

THE BRUCE COMPANY OF WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005779MD


On February 5, 2000, the Department of Workforce Development issued an initial determination which held that the employee was not available for work because he was restricted to less than 50 percent of the suitable full-time jobs in the labor market. The determination also held that the $436.00 in benefits paid to the employee, were not paid as a result of departmental error.

The commission, on its own motion pursuant to Wis. Stat. § 108.09(6)(c), issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee is a legal alien who works seasonally for the employer. He is authorized to work by what is known as an "H2B" visa, a visa which allows legal aliens to work for certain periods of time in this country, but only for a specific employer. In the fall of 1999, after the employer had laid the employee off for the season, the employee initiated a claim for unemployment insurance benefits. The issues are whether the employee was eligible for unemployment benefits received and, if not, whether recovery by the department of the overpayment should be waived on account of departmental error, within the meaning of Wis. Stat. § 108.02(10e). The commission concludes that the employee is not eligible for the benefits paid; the commission also concludes that recovery of the overpayment may not be waived. The commission therefore affirms the ultimate conclusions of the initial determination.

In the fall of 1999, a representative of the employer contacted a representative of the department to inquire whether the employee would be eligible for unemployment insurance benefits upon being laid off from the employer. The employer's representative informed the department representative that the employee was on an H2B visa. The department representative was not familiar with that kind of visa, and so erroneously informed the employer's representative the employee would be eligible for unemployment insurance upon layoff from the employer. The employer's representative in turn informed the employee that, upon layoff, he would be eligible for unemployment insurance benefits.

An H2B visa is employer-specific. That is, for a given season once work is completed, regardless of whether the expiration date of the visa has passed, the individual holding the visa is required to leave the United States and return to his or her country of origin. Thus, the employee returned to Mexico on or about November 25, 1999. The employee initiated his unemployment insurance claim from Mexico, and from there also filed weekly claims for weeks three and four of 2000, receiving $218.00 in benefits for each of those weeks. The employee, when initiating his claim, gave as his address that of a friend in Middleton, Wisconsin.

One requirement for unemployment insurance eligibility is that a claimant be available for work, within the meaning of Wis. Stat. § 108.04(2)(a). The employee was not available for work, within the meaning of that provision, because the employee, when he filed his claim for unemployment insurance, was not authorized to work in this country. The employer had no work for him and, by the terms of his visa, he was not authorized to be in the country at all. His visa had expired on November 30, 1999. The employee therefore was ineligible for the benefits he received in weeks three and four of 2000.

The statutes, as alluded to above, allow for waiver of recovery of an overpayment where the overpayment is due to departmental error. For such waiver to occur, however, the overpayment must be due solely to departmental error. Wis. Stat. § 108.22(8)(c)1.b states that the department shall waive recovery of erroneously paid benefits if the overpayment "did not result from the fault of an employee as provided in s. 108.04(13)(f), or because of a claimant's false statement or misrepresentation." Wis. Stat. § 108.04(13)(f) provides that an employee is at fault if benefits are erroneously paid "because an employee commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department." In other words, there can be no waiver in any instance where, even though the department commits error, the claimant also has failed to provide correct and complete information to the department under Wis. Stat. § 108.04(13)(f), or has made a false statement or misrepresentation within the meaning of Wis. Stat. § 108.22(8)(c)1.b. In the present case, the employee also is at fault for the erroneous benefit payments, such that waiver of recovery may not be waived.

First, the employee used an expired visa when initiating his claim for benefits. Second, the employee did not list his correct address. Third, the employee did not contact a claims specialist upon leaving the state. This failure was in contravention of the instruction in the Handbook for Claimants to the effect that claimants, if traveling to another state, are to call a claims specialist before leaving because the claimant's availability for work may be in question as a result of the traveling to a different state. All of these actions or inactions by the employee are claimant fault within the meaning of either Wis. Stat. § 108.04(13)(f) or Wis. Stat. § 108.22(8)(c)1.b.

The commission therefore finds that, in weeks three and four of 2000, the employee was not available for work within the meaning of Wis. Stat. § 108.04(2)(a). The commission also finds that the employee was paid benefits in the amount of $218.00 per week for each of weeks three and four of 2000, totaling $436.00, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not allowed under Wis. Stat. § 108.22(8)(c). Although departmental error contributed to the overpayment, the overpayment also resulted from employee fault as provided in Wis. Stat. § § 108.04(13)(f) and 108.22(8)(c)1.b.

DECISION

The initial determination is modified to accord with the foregoing and, as modified, is affirmed. Accordingly, the employee is ineligible for unemployment insurance beginning in week three of 2000 and until the employee is available for work, within the meaning of Wis. Stat. § 108.04(2)(a). The employee must repay $436.00 to the Unemployment Reserve Fund.

Dated and mailed March 14, 2001
baldera . usd : 105 : 8  AA 260  BR 335.04

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


cc:
Julie Jaksa
c/o The Bruce Company


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