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

NANCY E TOUBL, Employee

THE ANGEL MUSEUM, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01000357JV


On January 4, 2001, the Department of Workforce Development issued an initial determination which held that the employee was not available for work, within the meaning of Wis. Stat. § 108.04 (2)(a). The employee filed a timely request for hearing on the adverse determination, and hearing was held on February 5, 2001, in Janesville, Wisconsin before a department administrative law judge. On February 7, 2001, the administrative law judge issued an appeal tribunal decision affirming in part and reversing in part the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision. By March 14, 2001 order the commission remanded the matter for additional hearing, which took place on June 13, 2001. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee initiated her unemployment benefit claim on or about December 26, 2000 (week 53). She claimed partial benefits for that week. As of the calendar week ending January 6, 2001 (week 1) she was totally unemployed for her caf‚ manager job with the employer due to a seasonal shutdown of its museum caf‚ business. Although she had been enrolled as a full-time student at a four-year college, the school was in recess as of that week through the calendar week ending January 13, 2001 (week 2). Beginning on January 16, 2001 (week 3) the employee resumed attending college.

During weeks 1 and 2 of 2001, the employee was available for full-time work without restrictions, on any shift. As of those weeks, she expected to return to work for the employer when it was to reopen in February of 2001. Statements she may have given the department to the contrary were mistaken, due to a misunderstanding relating to work search.

The initial issue for decision is whether the employee was available for work in her labor market as of week 1 of 2001. Wisconsin statute § 108.04 (2)(a) provides that a claimant is eligible for benefits in any week in which no wages are earned only if the claimant is able to work and available for work.

Chapter DWD 128 of the Wisconsin Administrative Code implements the statutes and provides that a claimant with a controllable work restriction will be considered available to work if the claimant is available to perform at least 50 percent of the suitable full-time work opportunities in his or her labor market. Student status is a controllable restriction.

The applicable law requires that the employee be able to work and available for suitable full-time work on a week-to-week basis. The employee has satisfied this tribunal that she was available for full-time work during her school break. The fact that employers might not hire her because she would be available only temporarily is not determinative. Under the circumstances, the employee was available for full-time work without restriction in weeks 1 and 2 of 2001.

The remaining issue is whether due to her resumption of her college schedule as of week 3 of 2001, the employee was available for suitable full-time work in her labor market.

The employee's college schedule beginning January 16, 2001, was as follows:

Mondays and Wednesdays: 9 a.m. to 10 a.m. and 2 p.m. to 4 p.m.
Tuesdays: 8 a.m. to 9 a.m. and 7 p.m. to 9 p.m.
Thursdays: 7 p.m. to 9 p.m.
Fridays: 9 a.m. to 10 a.m.

The administrative code requires that claimants be available to perform at least 50 percent of suitable full-time work opportunities in the claimant's labor market. The administrative code defines suitable work to be "work that is reasonable considering the claimant's training, experience, and duration of unemployment as well as the availability of jobs in the labor market." A wide variety of jobs are suitable to the employee, including café‚ managerial work, secretarial work, grant writing, housekeeping, and child care. Based upon the employee's recitation of past work experience and the employee's resume, a department labor market analyst testified that suitable work for the employee would be in three general occupational categories: service, trade, and administrative support/clerical. Given the employee's school attendance restriction, the employee still is available for 63 percent of the suitable work in her labor market.

The commission therefore finds that, as of week 3 of 2001, the employee is available for suitable work, within the meaning of Wis. Stat. § 108.04 (2)(a) and Wis. Admin. Code § DWD 128.01 (2)(a).

DECISION

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employee is eligible for benefits in week 1 of 2000, if she is otherwise qualified.

Dated and mailed July 17, 2001
toublna . urr : 105 : 3  AA 205

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal was based upon evidence adduced at the remand hearing, evidence the administrative law judge did not have when he issued his decision in the case.


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uploaded 2001/07/23