PATRICIA A KRAEMER, Employee

DRAW DRAPE CLEANERS INC, Employer

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, and after consultation with the ALJ, the commission makes the following:

The employee worked for approximately 18 years as a service clerk for the employer, a company which provides window treatments. The employee's last day of work was in November of 2000 (week 47).

The employee had worked full time until early 2000. She then reduced her hours to part time after becoming eligible for social security. In November, the employee notified the employer that she had earned as many wages as she could without having to repay social security. She therefore ceased performing services for the employer. She indicated that she would return to work the following year. It is not disputed that the employer offered no assurance that she would return to work for it in 2001. The employer had work available for her to do when she ended her employment in November. When the employee contacted the employer in January about returning to work, the employer stated it wanted a full-time worker in the position but would contact her if it got busy and it needed extra help. No further contact between the parties occurred.

The issue is whether the employee quit or was discharged from her employment.

The employee maintained that she was discharged because she and the employer had an agreement that she would return to work after the new year. There is no support for this contention in the record. The employer did not agree to reinstate the employee in 2001. The employer never indicated to the employee when she gave notice of termination that that she would return in 2001 nor did it place her on a leave of absence. Moreover, the employee was the moving party in the separation. She decided without reference to the employer that she had to end her employment because she had earned all the wages she was permitted if she wished to maximize her social security. The employee plainly initiated the end of the employment and this constitutes a quitting for unemployment benefit purposes. The employee's quitting was not due to any fault attributable to the employer which might amount to good cause nor within any other exception which would permit the immediate payment of benefits.

The commission therefore finds that the employee was not discharged from her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee voluntarily terminated her work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a) and that this quitting was not for any reason permitting the immediate payment of benefits.

The commission further finds that the employee was paid benefits amounting to a total of $4,260; for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 47 of 2000, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times weekly benefit rate which would have been paid had the quitting not occurred. She is required to repay benefits in the amount of $4,260 to the Unemployment Reserve Fund.

Dated and mailed August 14, 2001
kraempa . urr : 178 : 1 VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission consulted with the ALJ regarding witness credibility prior to reversing. The ALJ felt there was an understanding between the parties when the employee initially reduced her hours in the spring that she would end her work when she had earned a set amount of wages and return the following year. However, the commission sees no evidence of a formal agreement to place the employee on a leave of absence. The employee determined her last day of work and assumed her future return date without regard to the employer's agreement or future need for her services. The employer did not agree to the arrangement.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

Appealed to Circuit Court. Affirmed June 6, 2002.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/08/17