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

ROMAN Y OLJUSHKIN, Employee

OSHKOSH COIL SPRING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01403423AP


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 employee worked for almost two years as a member of a part-time labor pool for the employer, a manufacturer of precision coil springs and wire forms. His last day of work was April 7, 2001 (week 14).

The employee is not a citizen of the United States. Consequently, he is required to maintain a valid employment authorization card. The employee's work authorization expired on April 7, 2001. He informed the employer that because he had been "procrastinating," he had neglected to make a timely application for a new employment authorization card. When his authorization expired on April 7, the employer immediately place him on suspension, in compliance with federal law. The employee never returned to work for this employer.

The employee applied for a new employment authorization form on April 7. He did not receive his employment authorization from the Immigration & Naturalization Service (INS) until late August. The employment authorization was effective August 29, 2001 (week 35). After the employee received the employment authorization, he applied for unemployment insurance benefits on August 31, 2001. He received unemployment insurance benefits in the amount of $155.00 in week 35, $12.00 in week 36, $155.00 in week 43, and $47.00 in week 44.

The initial issue to be decided is whether the employee voluntarily terminated his employment or was discharged. The second issue is whether his separation from employment was for a reason that permits the immediate payment of unemployment insurance benefits.

An employee may be found to have voluntarily terminated his or her employment despite the fact that the employee has never expressly stated "I quit." For unemployment insurance purposes, a quit can include a situation in which an employer actually discharges a worker. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980). An employee can voluntarily terminate employment by knowingly refusing to take action which would have allowed his or her employment to continue. Shudarek v. LIRC, 114 Wis. 2d 181, 188 (Ct. App. 1983). An employee may demonstrate an intent to leave his or her employment by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson, Wis. 2d at 119; Dentici v. Industrial Comm., 264 Wis. 181, 186 (1953).

In this case, the employee delayed submitting his employment authorization application until right before his current one expired. His continued employment was contingent on a valid card and ended due to this intentional lapse. The employee's actions were inconsistent with an intent to maintain the employment relationship and consequently amount to a quitting of his employment. While the employee testified that the year prior it took only 30 days to receive his new work authorization, he was aware that the process was not instantaneous and yet took no steps to get it underway until shortly before his present employment authorization card expired.

The commission therefore finds that in week 14 of 2001 the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a), and not for any reason constituting an exception to the quit disqualification.

The commission further finds that the employee was paid benefits in the amount of $369 for weeks 35 through 36, 43 through 44 of 2001, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

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 overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 14 of 2001, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. He is required to repay $369 to the Unemployment Reserve Fund.

Dated and mailed March 26, 2002
oljusro . urr : 178 : 8 VL 1007.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ regarding credibility prior to reversing. The commission accepts the facts found by the ALJ but reaches a different legal conclusion based on those facts.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.


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