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

VICTORIA O BAYMON, Employee

MERISTAR MANAGEMENT CO LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01003741MD


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The last sentence in the third paragraph of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW is deleted and the following substituted therefor:

"Another rule provides that a claimant will not be considered available for work if the claimant without good cause restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work in the claimant's labor market area. The latter rule generally applies to controllable personal circumstances."

2. The fifth and sixth paragraphs of the appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW are deleted and the following substituted therefor:

"The employee's wage restriction is a controllable personal circumstance. However, while her child care restriction is also considered to be controllable, it is not necessary to consider whether that restriction limits her to less than 50% of the full-time opportunities for suitable work where the restriction is with good cause. See Wis. Admin. Code § DWD 128.01(2)(a).

"Certified labor market evidence establishes that the employee's wage restriction limited her to 75-80% of suitable work and that, when combined with her shift restriction, she was able to perform 45% of suitable job opportunities in her labor market area."

3. In the last sentence on page 2 of the appeal tribunal decision the reference to "DWD 128.01(2)(b)" is deleted and "DWD 128.02(2)(a)" is substituted therefor.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 16 of 2001, if she is otherwise qualified.

Dated and mailed March 8, 2002
baymovi . umd : 164 : 1  AA 220 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

In its petition for commission review the department argues that the employee's shift restriction, which is due to limitations in the hours she has daycare available for her 3-year old daughter, should be treated as a controllable restriction. The commission agrees that childcare restrictions are generally regarded as controllable. However, even where a restriction is considered to be controllable, the administrative code contains a "good cause" provision for failing to meet the 50% availability requirement. In this case, the evidence established that the employee made childcare arrangements which would enable her to work between the hours of 6:00 a.m. and 6:00 p.m., at which point her day care center closed for the day. There is no indication that the employee had any childcare available to her during second and third shifts. The commission additionally notes that the employee has demonstrated an attachment to the labor market, having been reemployed since August of 2001. Given these factors, and considering that, even with her controllable restrictions the employee is available for close to 50% of suitable work, the commission sees no reason to conclude that she was not able and available as of the time period at issue.

cc: 
Holiday Inn Madison East
Greg Frigo


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uploaded 2002/03/11