ROBERT W STARK, Employee

KRUEPKE TRANSIT INC, 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 worked as a dump truck driver until some time in September of 2002 for the employer. In an appeal tribunal decision, issued on March 29, 2002, it was held that the employee was not able to work and available for suitable work as of week 4 of 2002, due to restrictions within his control.

The employee contended that he was able to work and available for suitable work as of week 19, the calendar week beginning March 24, 2002. Accordingly, the issue to be decided is whether he was able to work and available for suitable work as of that week or any subsequent week.

Wis. Stat. § 108.04(2) provides that in order to qualify for unemployment benefits, a claimant must be able to do, and available for, "suitable work." "Suitable work" is defined by Wis. Admin. Code § DWD 100.02(61) as work that is reasonable considering the claimant's training, experience, and duration of employment as well as the availability of jobs in the labor market. Wis. Admin. Code DWD § 128.01(2)(a) states that a claimant is not considered to be able to work or available for work if the claimant, without good cause, restricts his or her availability for work to less than 50 percent of the full-time opportunities for suitable work, including all jobs whether vacant or filled, in the claimant's labor market area. "Labor market area" is defined by Wis. Admin. Code DWD § 100.02(35) as a geographical area in which there are jobs deemed to be suitable work for the claimant and which encompasses the geographical area in which workers with similar occupational skills customarily travel to obtain or perform work. The definition of "Suitable work" takes into account the claimant's training, experience and duration of unemployment. The work which is "suitable" for a claimant will therefore be a percentage of all the work in the entire labor market. The second step is to determine what percentage of the suitable work the claimant is available for, given his/her physical limitations. Wisconsin Administrative Code § DWD 128.01(2)(a) provides that a claimant is not considered to be able to work or available for suitable work if 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. This type of restrictions is referred to as a "controllable restriction."

The employee has past work experience as an over-the-road truck driver, chassis mechanic, and as a librarian when he was in high school. He was willing to accept a minimum of $12.00 per hour and was restricted to work anytime from 4:00 a.m. until as late as 7:00 p.m. He was willing to work full time and had no restrictions on the type of work he would accept. He was willing to commute 15 miles one way to work.

Labor market information presented at the hearing indicated that with the employee's 4:00 a.m. to 7:00 p.m. work restriction, together with his minimum hourly wage requirement, he was available for just under fifty percent of suitable jobs in his labor market area. He had no physical restrictions, which would have prevented him form accepting any particular type of work. Because of the employee's controllable restrictions, he has failed to establish that he was available for at least 50 percent of the jobs in his labor market area as of the week in issue or thereafter.

Wis. Admin. Code § DWD 128.01(5) provides that the department may require a claimant who is partially unemployed to meet the 50 percent availability requirement if there is some definite indication that the claimant is not genuinely interested in working full time. The commission takes administrative notice of department records that indicate that the claimant earned wages in week 19 and therefore was partially unemployed. There is nothing in the record to suggest that the employee not interested in working full-time. Thus as of week 19 of 2002, the claimant is eligible for benefits for those weeks that he was partially employed, unless the department determines that after week 19 of 2002, there is some genuine indication that he is unwilling to work full-time.

The commission therefore finds that in week 19 of 2002, the employee was not able to work and/or not available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code DWD § 128, but that in week 19 of 2002, the claimant was partially employed and therefore not subject to the availability requirements within the meaning of sec. 108.04(2)(a), Stats., and Chapter ILHR 128 of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, he is eligible for benefits in week 19 of 2002, and any other weeks during which he was partially employed, if otherwise qualified.

Dated and mailed December 3, 2002
starkro . urr : 145 : 1  AA 285   AA 277

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission agreed with that ALJ's findings of fact and her conclusion that the employee, because of his controllable restrictions, was not able to work and available for work. The commission modified the ALJ's decision because it concluded that the employee was partially employed in week 19 of 2002.

In his petition for commission review the employee asserts that he was willing to drive at least forty-five minutes to an employer's location. The employee asserts that the ALJ erroneously attributes the average driving distance of fifteen miles, as presented by the labor analyst as the employee's testimony. However, the ALJ did not indicate that the employee was only willing to drive 15 miles for work. The labor market analyst testified that the customary commuting distance for someone in the Random Lake would be approximately 15 miles one way. The fact that the employee was willing to drive forty-five minutes to work indicates that he would be willing to drive at least the customary commuting distance of 15 miles. The labor market analyst testified that the employee's wage restriction would restrict him to 61 percent of the jobs. The limitation on his hours, added to the wage restriction, would render him available for less than 50 percent of suitable work in his labor market. Thus, the employee's wage and hour restriction alone rendered him unavailable for work in his labor market. The fact that the employee may have been willing to travel beyond what is customary would not increase the amount of jobs in his labor market.

cc: Attorney Katherine J. Kruger

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uploaded 2002/12/13