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

CONNIE J MCDERMID, Employee

COUNTRY PRIDE REALTY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01401747AP


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 worked as an office manager for about two years for the employer, a real estate agency. She also performed some real estate sales work for the employer. She has an associate degree as a paralegal but has never performed work in that field. She has past experience as a general office worker and office manager. After her employment with the employer of record ended, she initiated a claim for unemployment benefits in the calendar week ending January 13, 2001 (week 2), and received unemployment benefits on a weekly basis thereafter. When the employer noticed that the employee was advertising her services through her own real estate agency, an issue arose as to whether the employee was able to work and available for work in her labor market area as of week 17 of 2001, due primarily to her self-employment.

The issue to be decided is whether the employee was able to work and available for work in the employee's labor market as of week 17 of 2001.

Wis. Stat. § 108.04(2) provides that in order to qualify for unemployment benefits, a claimant must be able to do, and available for, "suitable work." "Suitable work" is defined by Wis. Admin. Code § DWD 100.02(61) as work that is reasonable considering the claimant's training, experience, and duration of employment as well as the availability of jobs in the labor market. Wis. Admin. Code § DWD 128.01(2)(a) states that a claimant is not considered to be able to work or available for work if the claimant, without good cause, restricts his or her availability for work to less than 50 percent of the full-time opportunities for suitable work, including all jobs whether vacant or filled, in the claimant's labor market area. "Labor market area" is defined by Wis. Admin. Code § DWD 100.02(35) as a geographical area in which there are jobs deemed to be suitable work for the claimant and which encompasses the geographical area in which workers with similar occupational skills customarily travel to obtain or perform work.

The claimant contended that she was able to work and available for suitable work as of the week in issue. However, until Tuesday, May 15, 2001 (week 20), the claimant had a wage restriction of $12.00 per hour. On May 15, the department adjudicator informed her that she should increase the distance she was willing to commute and reduce her wage requirement in order to be eligible for unemployment benefits. At that time she stated she would accept a minimum wage of $6.50 per hour and that she would drive approximately 25 miles one way for work. With her $12.00 per hour wage restriction, she was available for approximately 20 percent of the suitable jobs in her labor market area. Although the employee contended that as of May 15, she would have accepted a lower wage, the commission did not find her testimony in this regard to be credible. The employee did not lower her wage restriction until she was told that this was the reason she was not being paid benefits. The employee had invested a significant amount of time and money on her business as a real estate broker. In addition, the employee was actively working at her business. She initially indicated she had five listings and then stated that she had six listings. The commission is not convinced that the employee is interested in looking for other work given that she has opened a business as a real estate broker and is actively working in that business. In addition, the commission is not convinced that the employee would accept a job paying $6.50 per hour since she has invested a significant amount of money in her own business. Under the circumstances the employee has not demonstrated that she is available for suitable work.

The commission therefore finds that in week 17, the employee was not able to work and/or not available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. § DWD 128.

The commission further finds that the employee was paid for each of weeks 20 through 26 of 2001, amounting to a total of $ 2,191; 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.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment 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.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in week 17 of 2001, and until she is again able to work and available for work. The employee is required to repay the sum of $2,191 to the Unemployment Reserve Fund.

Dated and mailed October 15, 2001
mcderco . urr : 145 : 3   AA 265  AA 285 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ stated that she was not certain whether the employee would accept a wage lower than the $12 she originally indicated was the lowest wage she would accept. The ALJ further indicated that she did have questions about the employee's willingness to work at a job other than her own real estate business. Therefore, the commission is satisfied that the employee was not willing to accept a wage lower than $12 per hour. Further, the commission has serious doubts that the employee would accept a position at all, given her apparent commitment to her own business.

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.


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uploaded 2001/10/29