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

DONNALEE G CROWE, Employee

SEEK INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02401125GB


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 as a word processor for 15 months for a client of the employer, a temporary help agency. She earned $9.50 per hour. In or before August of 2001, the employee moved from the Appleton area to the Gillett area, 50 miles away from her assignment. The employee commuted from August of 2001 to the end of her assignment on February 8, 2002.

On February 13, 2002, the employer offered the employee data entry work in the Appleton area paying $8.50 per hour. Although the employee had passed a data entry test given by the employer, she declined the offer because she did not care for data entry work. In addition, she did not believe that $8.50 per hour justified the 50-mile one-way commute. In the employee's labor market, the substantially less favorable rate of pay for similar work is $7.26 per hour.

The employee's refusal of work amounted to a voluntary termination of her employment. The issue to be decided is whether she quit her employment for any reason permitting the immediate payment of benefits.

The distance the employee would have to travel to the assignment was not a circumstance attributable to the employer. The employee moved from the Appleton area after she began her employment relationship with the employer. The employee continued to commute the 50 miles to work for six months. The employee could not therefore rely on the commuting distance to justify her decision to quit. The offer of work did involve a decrease in pay, however, the wage rate was not substantially less favorable to the employee than existed for similar work in her labor market. The 10 percent hourly reduction in wage rate was not so substantial as to provide the employee with good cause attributable to the employer for quitting.

Finally, while it was clear that the employee did not prefer data entry work, the work was not unsuitable to her. The fact that the employee passed the employer's data entry test using one finger does not change the fact that she was capable of performing such work.

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

The commission further finds that the employee was paid benefits in the amount of $6,533.00 for weeks 7 through 41 of 2002, for which the employee was not eligible and to which the employee 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).

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 decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 7 of 2002, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $6,533.00 to the Unemployment Reserve Fund. Forty-seven dollars of the benefit check for week 8 of 2002 was forfeited. Since benefits are now denied for such week, that amount cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $47.00

Dated and mailed October 24, 2002
crowedo . urr : 132 : 1 : VL 1005.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on the credibility of the witnesses. The commission has reached a different legal conclusion than the ALJ after applying the law to the facts.


Appealed to Circuit Court. Affirmed March 6, 2003.

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uploaded 2002/11/01