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

GORDON C ZINDLER, Employee

CINTAS SALES CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97608037WK


On November 21, 1997 the Department of Workforce Development issued an initial determination which held that the employe's employment was suspended because his license was suspended due to his fault. The employe timely filed a request for hearing on the adverse determination, and hearing was held on January 13, 1998 in Waukesha, Wisconsin before a department administrative law judge. On January 16, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer timely filed a petition for commission review of the adverse appeal tribunal decision, and the matter is now ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a sales service representative for the employer, a uniform company, for approximately three years. His last day of work was October 31, 1997 (week 44), at which time the employer terminated his employment because the employe had lost his regular driver's license following a conviction for operating a vehicle while intoxicated. The issue in the case is whether the employe's employment was suspended or terminated because of the loss, suspension, or nonrenewal, due to the employe's own fault, of a license the employe was required to have in order to perform that work. The commission concludes that it was, and so reverses the appeal tribunal decision.

Wisconsin statute § 108.04(1)(f) provides as follows:

(f) If an employe is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employe's employment is suspended or terminated because the employe's license has been suspended, revoked or not renewed due to the employe's fault, the employe is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employe's employment is suspended or terminated shall be excluded from the employe's base period wages under s. 108.06(1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employe from establishing a benefit year using the wages excluded under this paragraph if the employe qualifies to establish a benefit year under s. 108.06 (2)(a). The department shall charge to the fund's balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 from which base period wages are excluded under this paragraph.

On July 6, 1997, the employe received a citation for operating a vehicle while intoxicated. The employe received a receipt for his license which allowed him to continue driving. On August 8, 1997, the employe's regular driver's license was revoked, and the employe applied for and was issued an occupational license. Pursuant to the employe's application, the employe is allowed to drive from 6 a.m. to 6 p.m. on Mondays and Tuesdays, from 6 a.m. to 2 p.m. on Wednesdays, from 6 a.m. to 5 p.m. on Thursdays, from 9 a.m. to 7 p.m. on Fridays, from 11 a.m. to 4 p.m. on Saturdays, and from 9 a.m. to 11 a.m. on Sundays (church).

The employer learned of the revocation of the employe's regular license and of the times the employe was allowed to drive on his occupational license. Since the employe could begin driving on Fridays at 9 a.m., and the employe began work at 7 a.m., the employer terminated the employe's employment.

The administrative law judge, in finding in favor of the employe, reasoned that the employe could have changed his occupational license application to reflect that he was driving for the employer by 7 a.m. on Fridays. It is true the employe could have, but the fact is that he did not. The employe therefore was driving before 9 a.m. on Fridays, without a valid license, and the employer was within its rights to terminate his employment therefor. The commission therefore finds that, in week 44 of: 1997, the employe's employment was suspended by the employer because a license issued by a government agency that was required by law in order to perform the employe's customary work for the employer, had been suspended, revoked, or not renewed due to the employe's own fault, within the meaning of Wis. Stat. § 108.04(1)(f). The commission also finds that the employe received benefits in the amount of $263 per week of each of weeks 45 of 1997 through 12 of 1998, totaling $5,260, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04 (13)(f), it also was not the result of departmental error. See Wis. Stat. § 108.22 (8) (c) 2.

DECISION

The appeal tribunal decision is reversed. Accordingly, benefits are denied beginning in week 44 of 1997 and for a period of up to 5 weeks thereafter, or until the license is reissued or renewed, whichever occurs first. Thereafter, benefits are allowed, if there are other employers in the base period and the employe is otherwise qualified. The employe must repay $5,260 to the Unemployment Reserve Fund.

The wages paid by this employer shall be excluded from the employe's base period wages for purposes of benefit entitlement while the suspension, revocation, or nonrenewal is in effect. Any benefits paid for later weeks, based on the wages excluded, that would otherwise be chargeable to the employer's account, shall be charged either to the fund's balancing account or administrative accounts.

Dated and mailed April 10, 1998
zindlgo . urr : 105 : 8   AA 130

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James R. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision, and credibility was a factor in the administrative law judge's fact-finding. In this case, the commission has accepted the same facts as did the administrative law judge. As a matter of law, though, it is not what the employe could have done in order to render his license valid for his work for the employer, but rather what: he in fact did or did not do to make the license valid. In this case the employe failed, with no valid excuse, to arrange his occupational privileges to correspond to his hours of work for the employer.

It may be that the employe's disqualification does not go through week 12 of 1998. If the employe regained his regular driver's license or obtained other employment and his occupational license driving times were adequate for that: employment, he should bring that fact to the commission's attention.

This decision has been remailed because it came to the attention of the commission that the first time it was mailed (April 1, 1998) it was undated.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2002/03/27