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

RONNIE HARMON, Employee

PPG INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00609539MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, benefits are allowed beginning in week 37 of 2000. Benefits otherwise payable for any week of partial or total unemployment are not reduced and the employee is eligible for benefits, if otherwise qualified.

Dated and mailed August 10, 2001
harmoro . usd : 135 : 1  UW 975

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer argues that the appeal tribunal decision should be overturned because the administrative law judge failed to apply the appropriate statute that provides for sick pay offsets. The employer cites Wis. Stat. § 108.05(3)(a), which reduces a claimant's weekly benefit rate if an eligible claimant earns wages in a given week. Furthermore Wis. Stat. § 108.05(3)(b) provides that an employee is ineligible for partial unemployment benefits if a claimant receives from "that employer sick pay which, by itself or in combination with wages earned for work performed in that week for that employer, is equivalent to pay for at least 35 hours of work at that same or a greater rate of pay." In its brief, the employer admits that while the employee's sick pay and/or combined wages fail to reach 35 hours per week, the employee's sick pay nonetheless should be considered wages and as such the employee should be eligible for only partial benefits in accordance with Wis. Stat. § 108.05(3).

The employer's argument discounts Wis. Stat. § 108.05(5m), the statute that defines when sick pay may be treated as wages for partial benefit purposes. Wis. Stat. § 108.05(5m) provides that for purpose of eligibility for partial benefits under sub (3), wages include sick pay only when paid or payable directly by an employer at the employee's usual rate of pay. Here, the employee's sick pay was not paid directly by the employer since there was a third party administrator. Thus, even though the employer's assets may exclusively fund the employee's sick pay, the sick pay was not paid directly by the employer in view of the third party administrator. Additionally, by the employer's own admission the employee's rate of sick pay was not the equivalent of the employee's usual rate of pay.

Consequently, the employer's argument to offset the employee's UI benefits is not statutorily permitted given the facts at hand.

cc: Lindner & Marsack S.C.


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uploaded 2001/08/13