BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

DAWN JOHNSON, Employee

Involving the account of

CAMBRIDGE STATE BANK, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 92005527MD


The Department of Industry, Labor and Human Relations issued an Initial Determination in the above-captioned matter which held that in weeks 42 through 47 of 1992, the employe was not able to work and/or not available for suitable work. As a result, benefits were denied for those weeks. The employe appealed and a hearing was held before an Appeal Tribunal. The Appeal Tribunal issued a decision on December 9, 1992, which affirmed the Initial Determination. The employe filed a timely petition for Commission review of the adverse Appeal Tribunal Decision.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe obtained a degree in police science from Madison Area Technical College in May of 1992. From September 14, 1992 (week 38) through November 20, 1992 (week 47), she attended Madison Area Technical College completing the Wisconsin Law Enforcements Standards Board's 400 Hour Basic Recruit Academy, a vocational diploma program. The program was a 10 credit program which met 40 hours per week, 8:00 a.m. to 5:00 p.m., Monday through Friday. Completion of the program makes the employe eligible for certification as a law enforcement officer, a certification required by certain departments. Madison Area Technical College considers 12 credits a full-time schedule. The employe initiated a benefit claim in week 42 of 1992, the calendar week ending October 17.

The issue to be decided is whether the employe was in a course of approved training under sec. 108.04 (16)(a) of the Statutes such that she was not subject to the able and available requirements of section 108.04 (2)(a) of the Statutes.

Section 108.04 (2)(a) provides that in order to be eligible for benefits in any given week an employe must be able to work and available for work, seeking suitable work during the week, and registered for work at a public employment office. An individual is not subject to the requirements of section 108.04 (2)(a) if the employe is in a course of approved training under section 108.04 (16)(a) of the Statutes, which provides in relevant part:

"(16) APPROVED TRAINING.

(a) Benefits shall not be reduced under sub. (1)(a), or denied under sub. (2) or (8) or s. 108.141 (3g) to any otherwise eligible individual for any week because the individual is enrolled in a full-time course of vocational training or basic education which is a prerequisite to such training, provided it is determined that:

1. The individual possesses aptitudes or skills which can be usefully supplemented by training; and

2. The course is expected to increase the individual's opportunities to obtain employment, does not grant substantial credit leading to a bachelor's or higher degree, and is given by a school established under s. 38.02 or other training institution approved by the department; and

3. The individual can reasonably be expected to complete the training course successfully, and to find and accept work; and

4. The individual attended the training course full-time during the given training week or had good cause for his failure to do so, and is making satisfactory progress in the course. The department may require the training institution to file a certification showing the individual's attendance and progress."

The Appeal Tribunal found that the employe was not in approved training under section 108.04 (16)(a) of the Statutes because she was a part-time student and not in a full-time course of vocational training. The Appeal Tribunal's finding was based on the fact that the employe's course of study consists of 10 credits, while Madison Area Technical College considers 12 credits to be a full-time course of study. The Commission disagrees with the Appeal Tribunal's application of the facts in this case to the law and therefore reverses the Appeal Tribunal Decision.

In general, the Department will accept a particular institution's definition of full-time when considering whether a particular employe is attending the institution full-time. However, there are exceptions to that general rule. For example, if a student is carrying less than a full-time schedule but is taking all the credits needed for a particular course of study, the individual is considered to be a full-time student. In addition, if a student is taking or enrolled for the last remaining credits needed to complete a course of instruction, even though the number of credits would normally indicate a part-time schedule, the individual would be considered full-time.  See Wisconsin Unemployment Compensation Manual, Volume 3, Part 7, Chapter 13, pages 5 through 8.

Since the vocational program the employe was attending only constituted a 10 credit program, the employe was taking all available credits in her particular course of study. The employe's course of study meets all the other requirements of section 108.04 (16)(a). Accordingly, the employe is in approved training and not subject to the able and available requirements of section 108.04 (2)(a) of the Statutes.

The Commission therefore finds that in weeks 42 through 47 of 1992, the employe was able to work and/or available for suitable work, within the meaning of section 108.04 (2)(a) and section 108.04 (16)(a) of the Statutes and Chapter 128 of the Wisconsin Administrative Code.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 42 of 1992, if she is otherwise qualified.

132 - CD1035  AA 205

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The Commission did not consult with the Administrative Law Judge regarding witness credibility or demeanor. The Commission does not reverse the Appeal Tribunal based on a differing assessment of witness credibility or demeanor but reverses as a matter of law.


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