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

DAVID A McKEAN, Employee

TANDEM STAFFING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02400198MN


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.

DECISION

The decision of the administrative law judge is affirmed.  Accordingly, the employee is ineligible for benefits beginning in week 33 of 2001, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred.  The employee is required to repay the sum of $2080 to the Unemployment Reserve Fund.

Dated and mailed May 23, 2002
mckeada . usd : 132 : 3  VL 1007.05

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee maintains in his petition that he did not quit his employment with the employer.  However, the employer clearly did not discharge the employee.  The employer had continuing work available for the employee.  It was the employee's personal circumstances that led to his inability to appear for work as scheduled.  The reason the employee did not contact the employer does not change the fact that it was the employee's personal circumstances that led to his failure to appear for work as scheduled.  The commission agrees with the administrative law judge that the employee's separation was appropriately characterized as a quitting by the employee and not a discharge by the employer.  A finding that the employee quit his employment results in the requirement that the employee requalify for benefits by earning four times his weekly benefit rate and waiting four weeks after the end of the week of separation, regardless of whether the employee had other base period employers.  Likewise, if the employee was found to have been discharged for a disqualifying reason the employee would be ineligible for benefits until the requalifying requirements had been met.  There is no provision for only requiring the employee to repay the particular employer's proportionate share of benefits paid based on wages earned from that employer.  For these reasons,. and for the reasons set forth in, the appeal tribunal decision, the commission affirms that decision.


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The Appeal Tribunal Decision is reproduced here:

Hearing No. 02400417AP

In the matter of:
DAVID A McKEAN, Respondent
   vs.
TANDEM STAFFING, Appellant

 

Administrative Law Judge:
Jo Ellen Rehbein

 Dated and Mailed:
 March 28, 2002

 

THE DEPARTMENT'S DETERMINATION HELD: that in week 28 of 2001, the employee did not voluntarily terminate work with the employing unit.  As a result, benefits were allowed.

Based on the applicable records and evidence in this case, the appeal tribunal makes the following

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked four months, most recently as a forklift driver for a customer of the employer, a temporary staffing agency. His last day of work was on July 18, 2001 (week 28).

The employee had been performing services for the employer's customer for over three months.  He performed the services in New Mexico.  After work on July 13, 2001 the employee was arrested and was to be extradited to Wisconsin.  While he was waiting in New Mexico to be extradited the employee was not allowed to make any telephone calls or write any letters.

In mid-August of 2001 the employee was transferred to Wisconsin.  When he was transferred it became apparent that the original charge for which he had been extradited had been incorrect.  However, due to nonpayment of child support he was required to sit in the jail in Wisconsin for another month.  He was released in late August or early September of 2001.

The employer did not have any contact with the employee after July 13, 2001.

The first issue to be decided is whether the employee quit his employment or was discharged.

The employee contended that he did not quit his employment.  He argued that although he knew he was to return to work for the customer on July 16, 2001 he was unable to do so because he had been arrested and was not allowed to make any telephone calls or have any contact via letter.  He argued he did not contact the employer when he was transferred to Wisconsin because he could only make collect telephone calls and he did not know the employer's telephone number or address.  The employee's contention cannot be sustained.

While the appeal tribunal agrees that when the employee was extradited that he had no choice, he remained in the Wisconsin jail due to his own fault.  It was due to nonpayment of child support.  The employee knew or should have known that nonpayment of child support could result in his being arrested and placed in jail.  Therefore, his actions were inconsistent with an employment relationship, and amounts to a quitting.  It must be held that he quit his employment effective the week ending August 18, 2001 (week 33) around the period of time that he was transferred to Wisconsin.

The second issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The statutes provide that if an employee terminates employment, benefit eligibility shall be suspended until four weeks have elapsed since the week of quitting, and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate, unless the termination was with good cause attributable to the employer or was within some other statutory exception.

The employee did not contend and the facts do not support a finding that the employee's quitting fell within an exception that would allow for the immediate payment of unemployment benefits.

Department records reflect that the employee received unemployment benefits for weeks 2 through 11 of 2002 in the total amount of$2,080.00.   Since he quit his employment and not within an exception he is ineligible for benefits until he has requalified. Accordingly, those benefits are overpaid.

Another issue to be decided is whether the overpayment of benefits to the employee was because of department error or was partially or wholly because of the employee's actions, and whether the department is required to waive recovery of any portion of that overpayment.

Section 108.22(8)(c) of the Wisconsin statutes provides that, effective with benefits paid in week 19 of 1994 and thereafter, the department shall waive recovery of benefits that were erroneously paid if the overpayment was a result of departmental error and the overpayment did not result from the fault of the claimant.

Section 108.02(10)(e) of theWisconsin statutes provides:

DEPARTMENTAL ERROR. “Departmental error” means an error made by the department in computing or paying benefits which results from:

(a) A mathematical mistake, miscalculation , misapplication
or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission; or

(b) Misinformation provided to a claimant by the department, on which the claimant relied.

Section 108.22(8)(c) further provides:

2. If a determination or decision issued under section 108.09 is amended, modified or reversed by an appeal tribunal, the commission or any court, that action shall not be treated as establishing department error for purposes of subd. 1a.

The determination held that the employee did not quit his employment. The unemployment benefits erroneously paid to the employee are due to the appeal tribunal decision and not due to departmental error.  Accordingly, he is required to repay benefits erroneously received.

The appeal tribunal therefore finds that in week 29 of 2001, the employee was not discharged by the employer, withih the meaning of section 108.04(5) of the statutes.

The appeal tribunal further finds that in week 33 of 2001, the employee voluntarily terminated employment with the employer within the meaning of section 108.04(7)(a) of the statutes, and that this quitting was not for any reason constituting an exception to benefit suspension under the statutes.

The appeal tribunal further finds that the employee was paid benefits in the amount of $2,080.00, for which the employee was not eligible and to which the employee was not entitled, within the meaning of section 108.03(1) of the statutes and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department and/or was caused partially or wholly by the employee within the meaning of section 108.22(8)(a) and (c) of the statutes.

DECISION

The department's determination is amended as to the weeks at issue, is modified to conform to the above and, as amended and modified, is reversed. Accordingly, the employee is ineligible for benefits beginning in week 33 of 2001, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $2,080.00 to the
Unemployment Reserve Fund.

APPEAL TRIBUNAL

/s/ Jo Ellen Rehbein
Administrative Law Judge
 


 

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