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

JOYCE A GUILMETTE, Claimant

CREATE ABILITY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01002296MD


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The claimant initiated a claim for benefits during week 41 of 2000, the week ending October 7. She received instructions on how to conduct a work search.

The claimant conducted two work searches a week until she accepted part-time employment. The claimant's handbook requires individuals to conduct two work searches per week. It also directs claimants to contact the department if they secure part time work to see if they are eligible to have their work searches waived. The claimant contacted the department representative and asked about requalifying for benefits since she had been disqualified due to quitting. She testified that she was given instructions not to quit her part time job, to concentrate her search on other work which would work with her existing job, and not to accept any independent contractor work which would not help her requalify. They did not discuss the number of work searches she should perform. She followed the advice she was given as she understood it and generally made about one contact a week for weeks 50 of 2000 through 7 of 2001.

The issue to be decided is whether the claimant made a reasonable search for suitable work during weeks 50 of 2000 through 7 of 2001, and, if not, whether the claimant knowingly made a false statement or concealed or misrepresented any information pertaining to the claimant's work search efforts when claiming unemployment benefits for that period.

In order for the department to retroactively assess an overpayment in cases of an inadequate work search, it must find that an claimant knowingly made a false statement, or concealed or misrepresented any information pertaining to her work search efforts under DWD 127.08. Intent is essential to a finding of fraud and also to a finding that retroactively assesses an overpayment in a work search case. The commission concludes that the employee lacked the requisite intent to conceal her inadequate work search. She was confused by the instructions she was given concerning requalification and thereafter failed to conduct a second search per week. Since the employee lacked any intent to conceal or misrepresent her conduct, she will not be assessed an overpayment for the weeks at issue.

The commission therefore finds that in weeks 50 of 2000 through week 7 of 2001, the claimant failed to make a reasonable search for suitable work, within the meaning of Wis. Stat. § 108.04(2) and Wis. Admin. Code § DWD 127.

The commission further finds that in claiming unemployment benefits for weeks 50 of 2000 through week 7 of 2001, the claimant did not knowingly make a false statement or conceal or misrepresent information pertaining to the claimant's work search efforts, within the meaning of Wis. Admin. Code § DWD 127.

DECISION

The decision of the administrative law judge is affirm in part and reversed in part. Accordingly, the claimant is ineligible for benefits in weeks 50 of 2000 through week 7 of 2001. No retroactive overpayment is assessed for those weeks.

Dated and mailed December 21, 2001
guilmjo . urr : 178 : 8   BR 325  BR 330  CP 350 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility with the ALJ prior to determining to reverse. While the ALJ was convinced that the claimant failed to make the two job contacts per week that she was instructed to make in the handbook, he also believed she was confused about what was expected. The commission judges that the claimant lacked any intent to knowingly conceal a failure to conduct an adequate work search. The commission accepts the claimant's testimony that she became confused by the department's instructions regarding earning requalifying wages after she quit her job and therefore failed to make the two contacts required. Since the commission accepts that this was unintentional, it reverses.

 


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