JOSHUA P LOWRY, Employee

GILMAN ENGINEERING & MFG CO LLC, 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 has worked 22 years for the employer. He was laid off during May and June and filed an unemployment claim on May 13, 2002. He had a recall date of June 10. The employee spoke to a claims-taker when he filed for benefits and he was told that his work search would be waived. Thereafter he received a packet of materials from the department, including a work search log. On May 20, the employee filed his weekly telephone claim for week 20. He answered the question, "did you search for work?" in the negative. He was denied benefits in that week due to his failure to conduct a work search.

The department has the discretion under DWD 127.02 of the Wisconsin Administrative Code to waive the work search in cases in which a worker has a reasonable chance of being called back to work within 12 weeks. The rules indicate that the department should consider any information given to the employee or the department in making this decision. The department must waive a work search under DWD 127.03 if the employee has not made a search for work due to an error made by personnel of the department.

In this case, the employee was told that his work search was waived. Given that he had a definite recall date at the time he applied for benefits, this was appropriate. He then disregarded the work search log he later received from the department. His work search was ultimately waived but it did not take effect until week 21. In week 20, he acted in reliance on what he was told by a department representative regarding his work search waiver. The employee is entitled to a waiver based on this error by the department in telling him that his work search was waived and then delaying the waiver by a week.

The commission therefore finds that in week 20 of 2002, the requirement that the employee make a reasonable search for work is waived, within the meaning of Wis. Stat. § 108.04(2) and chapter DWD 127 of the Wisconsin Administrative Code.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 20 of 2002.

Dated and mailed October 4, 2002
lowryjo . urr : 178 : 8  AA 230.04

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

The commission's reversal in this case is as a matter of law and not due to any differing impression of witness credibility. The department filed argument in favor of reversal. The commission has limited its findings to those in the record and has disregarded those facts offered by the department which differ from that record. The commission agrees that the employee was entitled to a waiver of his work search and this waiver was inadvertently overlooked until the following week. As the commission stated above, the employee acted in reliance on information given to him by the department. He is entitled to benefits for week 20.

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uploaded 2002/10/16