AMY M KUHLMAN, Employee

KIRLINS OF WISCONSIN, Employer

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:

The employee had a full-time position with the University of Wisconsin earning $11.00 per hour. She also had a part-time position with the named employer averaging 15 hours a week at $6.50 per hour. She was laid off from the University of Wisconsin on September 28, 2001. She quit her employment with the named employer on September 29, 2001. The employee moved in with friends in another state because she could not afford the rent on the apartment she shared with her sister.

The ALJ found that the employee quit her part-time work consisting of not more than 30 hours per week because the loss of her full-time employment made it economically unfeasible to continue her part-time work, within the meaning of Wis. Stat. § 108.04(7)(k). Whether work is "economically unfeasible" is determined by applying Wis. Admin. Code § DWD 132.03(3)(b), which provides:

To determine whether the loss of the full-time work makes it economically unfeasible for the claimant to continue the part-time work, the department shall add the amount of the claimant's gross wages from the part-time work for the week preceding the week in which the claimant terminates the part-time work to the amount of unemployment benefits payable for that week and subtract from this sum the expenses incurred by the claimant in that week for the part-time work. If the remainder is less than the claimant's full weekly benefit rate for that week, the department shall consider it economically unfeasible for the claimant to continue the part-time work.

The employee worked 15 hours per week at $6.50 per hour for gross wages of $97.50. The employee's weekly benefit rate is $300.00. The employee was entitled to benefits in the amount of $254.00. (1)   The employee's part-time wages when added to the amount of benefits payable totals $352.27. That amount exceeds the employee's weekly benefit rate. Therefore, absent evidence of expenses associated with the part-time position, the record does not support a finding that it was economically unfeasible to continue in her part-time work.

There was no testimony adduced as to any expenses incurred by the employee associated with her part-time work. The only expense discussed was the employee's rent, and no monetary figure was mentioned. Wis. Admin. Code § DWD 132.03(1)(a), defines "expenses" as those "incurred by the claimant to maintain part-time work and includes travel expenses, child care expenses and any other reasonable work-related expenses." The commission has previously noted that expenses referred to in Wis. Admin. Code § 132.03(3), are those associated with the part-time work. In Miller v. National Delivery Service Inc., UI Dec. Hearing No. 96600473MW (LIRC Apr. 10, 1996), the commission stated:

The employee's potential sources of income outside of his income from part-time employment and weekly unemployment benefits are not considered in determining the economic feasibility of continuing in the part-time work. Likewise, the employee's non-work related expenses such as his mortgage, utilities, food, and clothing are not considered in determining the economic feasibility of continuing in the part-time work. Instead, only the expenses associated with that part-time work are considered.

The commission therefore finds that in week 39 of 2001 the employee voluntarily terminated her employment with the named employer within the meaning of Wis. Stat. § 108.04(7)(a), but not for any reason constituting an exception to the section.

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The record does not support the ALJ's finding that it was economically unfeasible for the employee to continue her part-time work. The ALJ failed to adduce necessary information at the hearing and misapplied the law.

The commission further finds that due to department error and not due to any action by the employee, the employee was paid benefits for weeks 40 and 41 of 2001 in the amount of $600.00, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2001, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. Recovery of the overpaid benefits for weeks 40 and 41 of 2001, in the amount of $600.00 is waived. The employee is not required to repay the department, nor will the overpaid benefits be recovered by any other means. The appropriate employer account(s) will be credited immediately with the overpaid amount.

Dated and mailed March 29, 2002
kuhlmam . urr : 132 : 8 : VL 1039.09   BR 335.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc: Kirlins of Wisconsin

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(1)( Back ) Under Wis. Stat. § 108.05 (3)(a), an employee's benefit entitlement for a week of partial unemployment is determined by disregarding the first $30 of wages earned and reducing the weekly benefit by 67% of the remaining amount. The employee's benefit entitlement is therefore determined by subtracting $30 from his wages of $97.50, which leaves $67.50. That sum is multiplied by 67% leaving $45.225. That amount is subtracted from the employee's weekly benefit rate of $300 resulting in benefit payment of $254.775. Pursuant to Wis. Stat. § 108.05 (9), that amount is rounded down to the next lowest dollar, or to $254.00. 3

uploaded 2002/04/01