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

MICHAEL F WOJTALEWICZ, Employee

THE COPPS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01002416WR


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee has worked for the employer, a grocery firm, for 28 years as an order selector. On October 31, 2000 (week 45), the employee commenced a medical leave of absence. He had back surgery the following day and, as of the date of the hearing, was not yet able to return to work. On November 16, 2000, the employee initiated a claim for UI benefits, but did not begin receiving benefits until February 17, 2001 (week 7).

The employee is a member of the Teamsters Union, Local 662. Under the terms of a labor agreement with the employer, the employee can be absent from work for up to 3 years due to accident or illness without risk of losing his job. The employee has provided the employer with the paperwork necessary to qualify for leave under the union contract.

On or about March 15, 2001, the employer sent the employee, unsolicited, a Family and Medical Leave Act (hereinafter "FMLA") leave request form. The employee called the employer to ask why he had been sent the form, and was told it was a formality. During this conversation the employee pointed out that the form said the leave ran from October 31, 2000 through the present, but that he was only entitled to 12 weeks of leave. The employer then sent the employee another copy of the request form, this time with the dates reading March 15, 2001 through June 7, 2001. The employee signed the form and, on March 29, the employer sent him a note indicating that his request for leave was approved.

An employee is ineligible for UI benefits while he is on a family or medical leave under either the federal or state FMLA. See Wis. Stat. § 108.04(1)(b)(3). The question to decide is whether the statutory disqualification applies in this case.

The employee argues that he was not on an FMLA leave. The employee points out that he never requested the leave and that his job was already secure through his union contract. However, while it does appear that an FMLA leave was of no benefit to the employee and that he only requested the leave at the employer's behest, the statute does not contemplate an analysis of whether the leave is undertaken voluntarily or whether it is a good idea. See Aikens v. Department of Regulation & Licensing (LIRC, May 30, 2001). Rather, if a worker is on an FMLA leave, within the meaning of either the state or federal statutes, he is ineligible for benefits without regard to the circumstances.

The employee also argues that, at the time the FMLA leave was granted, he was not eligible for FMLA leave because he had only worked 934 hours from March 15, 2000 through March 15, 2001, when the leave officially began. The federal FMLA statute defines an "eligible employee" as a covered employee who has been employed in any employing office for 12 months and for at least 1,250 hours of employment during the previous 12 months. 29 U.S.C. § 2611(2)(a)(1993). Similarly, the Wisconsin FMLA only applies to an employee who has been employed by the same employer for more than 52 consecutive weeks, and who worked for the employer for at least 1000 hours during the preceding 52-week period. Wis. Stat. § 103.10(2)(c)  (1).  Although it does appear that, as of March 15, 2001, the employee lacked sufficient hours to be eligible for FMLA leave under either the state or federal statutes, for purposes of the Wisconsin FMLA, the employer can provide the employee with FMLA leave, if it chooses to do so, under conditions that are less restrictive than those contemplated in the statute. On this point, the law states:

"To the extent that an employer grants leave to an employee relating to the employee's own health in a manner which is no more restrictive than the leave available to that employee under s. 103.10 (4), Stats., the leave granted by the employer shall be deemed to be leave available to that employee under s. 103.10(4), Stats."

Wis. Admin. Code § DWD 225.01(9).

Thus, the employer was free to deem the employee's leave, granted under conditions no less restrictive than those contemplated under the Wisconsin FMLA, as FMLA leave.

This does not mean, however, that the employer is free to deem more than two weeks of the employee's leave time as leave under the Wisconsin FMLA (2),  or that the employer can arbitrarily deem the FMLA leave to begin at any point of time of its choosing. In this case, the commission believes that the employee's FMLA leave began, not in March of 2001, but on October 31, 2000, as originally indicated by the employer on the FMLA form it sent the employee. Where, as here, an employee takes an extended medical leave of absence under conditions which remain the same throughout the course of the leave, his FMLA leave should be deemed to begin at the onset of the leave, rather than at a future date randomly selected by the employer. To do otherwise would invite manipulation of the system by employers seeking to deny UI benefits to claimants by deeming them to be on FMLA leave, not when they first commence their leave, but at the point when they become able and available for work and, hence, eligible for benefits. Thus, the commission believes that the employee's FMLA leave began on October 31, 2000, irrespective of the dates mentioned on his revised FMLA leave request paperwork.

The commission further notes that, where the employee's FMLA leave is found to have commenced on October 31, 2000, there is no reason to doubt that the employee worked sufficient hours in the preceding year to be considered an eligible employee under both the federal and state statutes. Consequently, the commission believes that the employee was eligible for the entire 12-week leave afforded under federal law. 29 U.S.C. 2612(a)(1)(D)(1993).

The commission, therefore, finds that beginning in week 45 of 2000, the employee was on a medical leave pursuant to Wis. Stat. § 108.04(1)(b)3. He is therefore ineligible for benefits as of that week and until his 12-week FMLA leave is exhausted.

DECISION

The decision of the administrative law judge is amended as to the week of issue and, as amended, is reversed. Accordingly, the employee is ineligible for benefits in weeks 45 of 2000 through 3 of 2001. He is eligible for benefits starting in week 4 of 2001, provided he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed September 14, 2001
wojtami . urr : 164 : 1 VL 1023.15

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge about witness credibility. The commission's reversal of the appeal tribunal decision is as a matter of law.



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Footnotes:

(1)( Back ) The 1000 hour requirement under the state statute includes hours for which the employee was paid pursuant to a regular policy of paid vacation leave, sick leave or other paid leave. Wis. Admin. Code § DWD 225.01(4). The federal statute, however, does not include other paid leave.

(2)( Back ) Although the statute states that an employer can provide employees with rights to medical leave that are more generous than the rights provided under the law, any such leave would be in addition to an employee's rights to statutory FMLA leave, which is a 2-week leave only. See Wis. Stat. §§ 103.10(2)(a) and 103.10(4)(b).

 


uploaded 2001/09/17