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

AMBER R THOMPSON, Employee

PAMIDA INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00403649EC


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 claimant initiated a claim for unemployment benefits on November 15, 2000 (week 47). The last place the claimant worked prior to the start of her claim was at a restaurant, part-time as a waitress. The claimant next worked part-time from December 5, 2000 (week 50), to February 28, 2001 (week 9) for a fast food restaurant. On March 5, 2001 (week 10), the claimant started her most recent employment at a truck stop.

The issue to be decided in this case is whether the claimant was able to work and available for work as of week 47 of 2000.

The claimant attends school at her local high school. During the fall the claimant's class attendance was from 8:00 a.m. to 1:20 p.m. In the spring semester the claimant changed her schedule so that she was attending class from 8:00 a.m. to noon. She was not willing to drop her classes to accept full-time work. During the fall, the claimant was willing to work 26 hours per week. The claimant turned 18 years of age on February 1, 2001 (week 5). As of then she was willing to work full-time.

The claimant's job at the restaurant and at the fast food restaurant were for 20 hours per week. She started out working 20 hours per week at the truck stop, but that may develop into more hours.

Wis. Stat. § 108.04(2) states simply that the claimant, in order to be eligible for benefits must be "able to work and available for work, during any week in which the claimant earns no wages." Wis. Admin. Code § DWD 128 provides further information. Specifically, "(2) A claimant is not considered to be able to work or available for work in any given week if:

(a) The claimant, without good cause, restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area:

(b) The claimant's physical condition or personal circumstances over which the claimant has no control limit the claimant to less than 15% of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area; or"

There is a note that states:

"Section DWD 128.01(2)(a) applies to a claimant whose restrictions on availability for work are within his or her power to change or alter. School attendance is generally a controllable restriction and therefore, `without good cause' unless the person is enrolled in an approved training program under s. 108.04(16), Stats. The wage demand of a claimant is also considered a controllable restriction. A claimant obligated to care for minor children is expected to make arrangements which would permit the claimant to accept suitable work. Unwillingness or failure to make such arrangements are controllable restrictions and, normally, without good cause.

Section DWD 128.01(2)(b) applies to a claimant whose physical condition or uncontrollable personal circumstances limit the opportunity for suitable work. A claimant may be severely limited in the type of work which he or she could perform because of illness, disability, injury or age, but still be able to perform at least 15% of the suitable jobs in the claimant's labor market area."

The commission has interpreted the note to define high school as a controllable restriction. The commission has also found that high school attendance did not give a claimant good cause for restricting his or her availability for work. See Bryan C. Lang v. General Business Services Inc., UI Dec. Hearing No. 98003796MD (LIRC February 16, 1999); Christina Mitchell v. North Side Big Value Store, UI Dec. Hearing No. 97600370MW (LIRC May 8, 1997). Under the commission's interpretation, high school students would need to be available for 50 percent or more of suitable work. Because of her school attendance, the claimant here was not available for at least 50 percent of suitable work.

The ALJ in the present case reasoned that the claimant's high school attendance was not controllable in her case because Wis. Stat. § 118.15 provides that children between the ages of 6 and 18 must be enrolled in school or some equivalent program. The ALJ also ruled that in this case the claimant did not have an equivalent program available for her. As such, although the claimant was not willing to work full-time until she turned 18, she was still available for more than 15 percent of the work in her labor market. Thus, the ALJ determined that the claimant was able to work and available for work.

The commission acknowledges that the ALJ's interpretation of the phrase "personal circumstances over which the claimant has no control" may not be unreasonable given that state law compels children under the age of 18 to attend school. However, the note to Wis. Admin. Code § DWD 128.01 which further defines circumstances over which the worker has no control specifically states that school attendance, unless it is in an approved training course, is within the claimant's control. While the word "generally" in that note may be interpreted to exclude compulsory education of all children between the ages of 6 and 18 years of age, the department and the commission have previously construed the rule and the note to define compulsory school attendance as a "controllable restriction."

Moreover, the commission notes that the claimant explained that she had not looked into homeschooling because she wanted the social interaction she got at school and the compulsory school attendance law does provide limited exceptions to high school attendance.

The commission's interpretation of Wis. Admin. Code § DWD 128.01 in this regard, effectively treating school children as subject to a restriction that renders them unavailable for work, is consistent with the purpose of the availability requirement in the unemployment insurance law. First, Wis. Stat. § 108.04(2) requires that a worker be able to work and available for work. High school students have a significant impediment to their ability to work full time in that they must attend school. In this case, the claimant is not even interested in working full-time while she is in school. This is quite different from a situation where an adult worker is seeking full-time work, but because of an "uncontrollable" restriction from a physical impediment (such as lifting restrictions) is simply unable to perform most of the work in the labor market. Under the circumstances, the commission concludes that the claimant in this case was not able to work and available for work, before she turned 18.

Wis. Admin. Code § DWD 128.01(5) provides that the department may require a claimant who is partially unemployed to meet the 50 percent availability requirement if there is some definite indication that the claimant is not genuinely interested in working full time. The claimant has earned wages during most of the weeks at issue and therefore was partially unemployed. However, in this case the claimant testified that she was not interested in working full-time until she turned 18. This occurred on February 1, 2001 (week 5). Thus as of week 5 of 2001, the claimant is eligible for benefits for those weeks that she was partially employed, unless the department determines that after week 11 of 2001, the week of the hearing, that there is some genuine indication that she is unwilling to work full- time. The employee graduates from high school on Sunday, May 25, 2001 (week 22).

The commission therefore finds that in week 47 of 2000, the claimant was not able to work and not available for suitable work, because she earned no wages and was therefore subject to the availability requirement, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128. As of week 22 of 2001, the employee was able to work and available for work within the meaning of that section.

The commission further finds that the claimant was paid benefits in the amount of $536.00 for weeks 47 of 2000 through 21 of 2001, for which she was not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of a departmental error, and because the ALJ failed to apply the department's long standing practice regarding school attendance as a controllable restriction. The overpayment did not result from the fault of the claimant as provided in Wis. Stat. § 108.04(13)(f).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is ineligible for benefits for week 47 of 2000. She is eligible for benefit in weeks during which she was partially employed beginning in week 5 of 2001. The recovery of overpaid benefits is waived. As of week 22, the employee is eligible for benefits if otherwise qualified. The employee is not required to repay the sum of $536.00 to the Unemployment Reserve Fund. The overpayment is waived.

Dated and mailed November 14, 2001
thompam . urr : 145 : 1  AA 205  BR 335.01 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but reversed this decision as a matter of law.

cc: Gregory A. Frigo


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uploaded 2001/11/16