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

LAUREN K PENNELL, Employee

DRAKE & CO OF MADISON INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02004807MD


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 about 11 weeks for the employer, an employment agency and staffing service. She worked in a temp-to-hire assignment as an administrative assistant for a food service business. Her last day of work for the employer was May 29, 2002 (week 22), when it informed her that the food service business wished to hire her directly. She worked for the latter business until June 13, 2002 (week 24), when it discharged her without explanation. She began claiming unemployment benefits during the following week.

The primary issue for decision is whether the employee's transfer from the employer's payroll to the food service company's payroll was a quitting of her employment with the employer. If it was, she had not earned enough subsequent wages from the food service company to regain benefit eligibility when she started her claim.

The employer contended that the employee quit by accepting direct employment with its client. The commission agrees. The commission has previously held that a transfer from a temporary staffing employer to its client is a quitting if the employee had the option to continue working for the temporary employer and the employee was aware that such option existed. Reppen v. Trillium Staffing Solutions, UI Hearing Dec. No. 01401899MN (LIRC Nov. 14, 2001). In Reppen, the employer had not directly notified the employee that he had the option to continue working for it, but the employee assumed he had such option based on his employment with other temporary help employers. In this case, the employer would have allowed the employee to continue working for it if she did wish to transfer to the food service company. The employee testified that she assumed she had the option to continue working for the employer. Accordingly, the commission finds that the employee quit her employment when she transferred to the food service company. The employee's quitting does not fall within any statutory exception to the quit disqualification. As noted above, she has not earned sufficient wages since quitting her work for the employer to requalify for benefits.

The commission therefore finds that in week 22 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 $4,605.00 for weeks 25 through 39 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 22 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 $4,605.00 to the Unemployment Reserve Fund.

Dated and mailed December 4, 2002
pennela . urr : 132 : 1 : VL 1025

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that his decision was based on the conclusion that the conditions set forth in Reppen were not satisfied. The commission disagrees with such conclusion and therefore reverses the ALJ's decision.


Appealed to Circuit Court. Affirmed  August 14, 2003.  [Summary of Circuit Court decision]

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uploaded 2002/12/13