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

BRIAN J JAEGER, Employee

BLUE HORSE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02003276JV


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 by the department of workforce development.

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

As of week 14 of 2002, beginning March 31, the 23-year old employee was enrolled as a second year senior in a computer end-user technology program at a university, carrying 16 credits. He anticipates graduating from the program in December of 2002. He needs nine credits after the Spring 2002 semester to earn his degree. As of the end of the spring semester he has finished all his required computer courses.

The issue is whether the employee was able to work and available for work in weeks 14 through 19 of 2002.

Until March 28, 2002 (week 13) the employee was employed as a full-time network administrator for a client of a temporary agency employer. His work hours were from 3:00 p.m. to 11:00 p.m. Monday through Friday. As of March 28, however, he became unemployed.

He attended class from 8:50 a.m. until 2:00 p.m. Monday, Wednesday and Friday, and from 9:30 a.m. until 1:45 p.m. on Tuesday and Thursday. He had a 6:30 to 9:30 p.m. course on Wednesday evening that he could have changed to days. His class history since 2000 shows a mixture of day and evening courses taken around work. Prior to working for his last employer he worked for 25 to 30 hours per week over two and one-half years as a tech support analyst and later as a network administrator for the employer/respondent. Each of these jobs was directly related to and facilitated by his college course of training.

During the employee's applicable four-quarter base period spanning the fourth quarter of 2000 through the third quarter of 2001, he earned more than $21,000 with the employer/respondent. Over a seven quarter period from the third quarter of 2000 through the first quarter of 2002, his average quarterly wages were over $5,000.

Wis. Admin. Code. § 128 requires a claimant to be able to work and available for work. Wis. Stat. § 108.04(2) states simply that the claimant, in order to be eligible for benefits must be "able to work and available for work, during any week in which the claimant earns no wages." Wis. Admin. Code § DWD 128 provides further information. Specifically, "(2) A claimant is not considered to be able to work or available for work in any given week if:

(a) The claimant, without good cause, restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area:

(b) The claimant's physical condition or personal circumstances over which the claimant has no control limit the claimant to less than 15% of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area; or"

There is a note that states:

"Section DWD 128.01(2)(a) applies to a claimant whose restrictions on availability for work are within his or her power to change or alter. School attendance is generally a controllable restriction and therefore, 'without good cause' unless the person is enrolled in an approved training program under s. 108.04(16), Stats. The wage demand of a claimant is also considered a controllable restriction. A claimant obligated to care for minor children is expected to make arrangements, which would permit the claimant to accept suitable work. Unwillingness or failure to make such arrangements are controllable restrictions and, normally, without good cause.

Section DWD 128.01(2)(b) applies to a claimant whose physical condition or uncontrollable personal circumstances limit the opportunity for suitable work. A claimant may be severely limited in the type of work which he or she could perform because of illness, disability, injury or age, but still be able to perform at least 15% of the suitable jobs in the claimant's labor market area."

Based on the testimony of a department labor market analyst, the employee's school hours would limit him to 32 to 38 percent of suitable full-time work in the applicable labor market area.

The evidence of the labor market analyst indicates that the employee is available for less than 50 percent of the suitable full-time work in his labor market. The employee has chosen to continue his education by attending college. The commission has long held that the employee's status as a student is a controllable restriction, and as such, the employee is subject to the requirement that he be available for at least 50 percent of suitable work. See, Toubl v. The Angel Museum, UI Dec. Hearing No. 01000357JV (LIRC July 17, 2001).

The commission therefore finds that in weeks 14 through 19 of 2002, the employee was not able to work and not available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.

The commission further finds that the employee was paid benefits in the amount of $1,295.00 for weeks 14 through 19 of 2002, for which he was not eligible and to which he is not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment was the result of a departmental error, and because the ALJ failed to apply the department's long standing practice regarding school attendance as a controllable restriction. The overpayment did not result from the fault of the claimant as provided in Wis. Stat. § 108.04(13)(f).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is ineligible for benefits for weeks 14 through 19 of 2002. The employee is not required to repay the sum of $1,296.00 to the Unemployment Reserve Fund. The overpayment is waived.

Dated and mailed October 11, 2002
jaegebr . urr : 145 : 8  AA 205

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but reversed this decision as a matter of law.

cc: Gregory A. Frigo

 


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uploaded 2002/10/18