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

SARA J FREDENBERG, Employee

GOODYEAR TIRE & RUBBER CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005111MD


On September 2, 2000, the Department of Workforce Development issued an initial determination which held that the employee's failure to call the telephone initial claims system prior to November 19, 1999, was due to an exceptional circumstance. The employer filed a timely request for hearing on the adverse determination, and hearing was held on October 23, 2000 in Madison, Wisconsin before a department administrative law judge. On October 27, 2000, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter 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 has worked for about ten years as a laborer for the employer, a tire manufacturer. In 1999 she was scheduled to work 12-hour shifts from 4 a.m. to 4 p.m. She was expecting the birth of a child in July.

In early April the employee's doctor determined that she should not be on her feet for so long a period and told her to reduce her hours of work to four hours a day. She had a friend and co-worker who also was pregnant and who had been told by a doctor to reduce her hours of work. Her co-worker met with the employer's human resources director regarding the co-worker's doctor's directive and requested a reduced work schedule. The director told the co-worker that the employer would not provide them (the co-worker and the employee) with any work within those restrictions and that they would have to take a medical leave of absence. She replied that if the employer was not going to provide her with work, she was going to apply for unemployment benefits. The director told her that she could not collect payments through the employer's accident and sickness policy and unemployment benefits at the same time.

Following her conversation with the human resources director the co-worker returned to her workstation. At that time the co-worker told the employee what the human resources director had said regarding collecting accident and sickness and unemployment benefits at the same time.

On April 6, 1999 (week 15), the employee provided the employer with a copy of her medical restrictions. After completing the paperwork, she began a leave of absence. Her child was born on June 21, 1999 (week 26). On November 19, 1999 (week 47), after learning that another pregnant co-worker had collected unemployment benefits while on a maternity leave of absence, she applied for benefits. She requested that her claim be backdated to begin in week 15 of 1999.

The statutes and administrative code provide that a claimant shall be eligible to begin an unemployment benefit claim only in a week in which he or she has notified the department of an intention to initiate a claim, by telephone, in person or as otherwise prescribed by the department. This requirement is applicable both to the initial week for which a worker claims benefits and to a week in which a worker seeks to reopen a prior benefit claim, but may be waived if exceptional circumstances exist.

Wisconsin Admin. Code § DWD 129.01(4) provides as follows:

Waiver; Exceptional Circumstances. The department shall waive the requirements of this chapter if exceptional circumstances exist. Exceptional circumstances include, but are not limited to, the following:

(a) An error relating to the claimant's giving of notice made by personnel of the department, or a reasonable misunderstanding by the claimant based on information given to the claimant by the department.

(b) Action by an employer, in any manner, directly or indirectly, instructing, warning or persuading the claimant not to file a benefit claim.

(c) The claimant did not comply because the claimant was not aware of the duty to notify the department and the claimant's most recent employer failed to post or maintain any notice as to claimant unemployment benefits which has been supplied to the employer as required under s. DWD 120.01.

(d) The claimant performed services as a school year employee in other than an instructional, research or principal administrative capacity and had reasonable assurance of performing services for the employer in a similar capacity in the 2nd academic year or term but was subsequently not offered the opportunity to perform such services.

The administrative law judge, in finding that the co-worker of the employee did not have exceptional circumstances for her late filing, reasoned that the above administrative code provision is punitive in nature and must be strictly construed. This is incorrect. Wisconsin courts "liberally construe statutes that are remedial in nature." Butzlaff v. Wisconsin Personnel Commission, 166 Wis. 2d 1028, 1033, 480 N.W.2d 559 (1991). The Department of Labor has also reminded the states that the unemployment insurance legislation is remedial and, as such, is subject to liberal interpretation. UIPL No. 41-98, p. 8; UIPL No. 984, p. 2; UIPL No. 130, p. 15 (" . . . the general rule that remedial legislation is to be liberally interpreted and applied in favor of those it was intended to aid would indicate that the claimant be given the benefit of the doubt.").

There is also analogous commission precedent for finding the employee's circumstances to be "exceptional," in Vissers v. Mildred H. Baumbach, UI Dec. Hearing No. 93202296 EC (LIRC 3/23/94). In that case, the employer had no work for the employee in week 35. The employee inquired whether she could collect unemployment compensation for that week; the employer's daughter told the employee, in response, that she could make up in the following week the hours she would not be getting in week 35. The commission held that even this comment by the employer's daughter fell within the exceptional circumstance of action by an employer in any manner, directly or indirectly, instructing, warning, or persuading a claimant not to file a benefit claim.

In the present case, the employee's human resources director told the co-worker of the employee they could not collect payment through the employer's accident and sickness policy and unemployment benefits at the same time. This assertion by the human resources director is not necessarily correct, however. By operation of Wis. Stat. § 108.02(26)(c)1a, sickness or accident disability pay is not considered wages. The provision now at issue, Wis. Admin. Code § DWD 129.01(4)(b), is broad; by its express terms it includes indirect persuasion of the claimant not to file a benefit claim. The human resources director's statement to the co-worker of the employee in fact led both the employee and co-worker not to file their claims, and so falls within the scope of the administrative code provision. The commission therefore finds that, as of week 17 of 1999, the employee failed to notify the department of intent to initiate or to reactivate her benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code § Ch. DWD 129, but that the reason for the failure constitutes an exceptional circumstance so as to permit waiver of the notification requirement, within the meaning of the statutes and administrative code.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for unemployment insurance in weeks 15 through 46 of 1999, if she is otherwise qualified. This matter is remanded to the Department of Workforce Development for analysis of potentially disqualifying issues, as addressed in the note below.

Dated and mailed August 17, 2001
fredesa . urr : 105 : 1  CP 360

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: Although it is unclear from the record in the case, it appears possible that the employee for a time was off work pursuant to family or medical leave. The department should investigate whether any such leave of the employee is family or medical leave under the Federal Family and Medical Leave Act of 1993 or Wis. Stat. § 103.10, because of the resulting disqualification from unemployment insurance eligibility of Wis. Stat. § 108.04(1)(b)3. In addition, to the extent the department has not already done so, it should consider the employee's ability to work and availability for work during the time period in question, since the employee was on leave from the employer due in part to medical restrictions.

The commission sees no logical difference between this case and that of Ms. Dushack. The commission emphasises, though, that the result in this case depends upon the fact that Ms. Dushack correctly relayed to the employee what the human resources director had told her (Ms. Dushack). Had Ms. Dushack incorrectly relayed the information in question, then there would have been no action by the employer which caused the employee not to file her claim for unemployment insurance.

cc: Goodyear (Wisconsin)


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uploaded 2001/08/27