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

CYNTHIA R HEATON, Employee

LANDS END INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02003922DV


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 the employer for 18 and a half years. During her last two years of employment she held a second full-time job. On February 1, 2002, the employee reduced her hours at the employer from 40 to 32 hours a week and, on March 31 (week 14), she quit altogether. Four days later the employee learned that she was subject to a one-week layoff from her other full-time job on a monthly basis. The employee filed a claim for UI benefits during her layoff.

As a general rule, employees who quit are ineligible for benefits until they requalify under Wis. Stat. § 108.04(7)(a). However, the statute contains a number of exceptions to this rule. The question to decide is whether the employee's quitting fell within any statutory exception permitting the immediate payment of benefits.

The exception that seems most likely to apply in this case is Wis. Stat. § 108.04(7)(o), which allows benefits for an employee who terminates her work in one of two concurrently held positions, at least one of which consists of more than 30 hours per week, if the employee terminates her work before receiving notice of termination from a position which consists of more than 30 hours per week. The commission has interpreted the word "termination" to be just that, a complete termination of the second work relationship, and has consistently declined to apply the exception to a temporary layoff situation. See, Delzer v. Wal-Mart Associates, Inc. (LIRC May 6, 1999), and cases cited therein.

The commission therefore finds that in week 14 of 2002, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in week 17 of 2002 in the amount of $324, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

A secondary issue presented in this case is whether the overpayment of benefits to the employee was because of departmental 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 the overpayment.

"Departmental error" is 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, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. § 108.02(10e). In this case, benefits were paid to the employee because the appeal tribunal chose to disregard controlling case law. This constitutes a department error for which recovery of the overpaid benefits must be waived.

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

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 14 of 2002, 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 her weekly benefit rate which would have been paid had the quitting not occurred. Department records indicate that the employee has requalified for benefits as of week 21 of 2002. She is not required to repay $324 to the Unemployment Reserve Fund.

Dated and mailed October 7, 2002
heatocy . urr : 164 : 8  VL 1020  BR 335.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner


NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal is as a matter of law.


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uploaded 2002/10/18