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

SHIRLEY M ERTL, Employee

TECUMSEH PRODUCTS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02402668SH


On July 12, 2002, the Department of Workforce Development issued an initial determination which held that the employee was ineligible for unemployment insurance in weeks 25 and 26 of 2002, on the ground that she was on a voluntary leave of absence. The employee filed a timely request for hearing on the adverse determination, and hearing was held on August 26, 2002 in Sheboygan, Wisconsin before a department administrative law judge. On August 30, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee continues to work for the employer, a tool manufacturer. The issue in this case is whether the employee's two weeks of vacation in the middle of 2002 was a voluntary leave of absence within the meaning of Wis. Stat. § 108.04(1)(b)2. The commission concludes that it was not, and so reverses the appeal tribunal decision.

The employer had an economic layoff in the summer of 2001, at which time the employee applied for and received unemployment insurance benefits. In two of those weeks, however, weeks 30 and 31, the employee was found to be ineligible for unemployment insurance because the employer mistakenly paid her vacation pay for those weeks. The employee filed a grievance over the matter, the result of which was that the employer gave the employee entitlement to two weeks of additional, unpaid vacation in 2002. The employee applied her two weeks' unpaid vacation to weeks 25 and 26 of 2002, and also filed a claim for unemployment insurance benefits for those weeks.

Wisconsin Stat. § 108.04(1)(b)2 states that an employee is ineligible for unemployment insurance while on a voluntary leave of absence granted for a definite period. The issue is whether an unpaid vacation is a leave of absence under Wis. Stat. § 108.04(1)(b)2. For the following reason, the commission concludes that it is not. To the extent that a voluntary leave of absence encompasses one or more full weeks, Wis. Stat. § 108.04(1)(b)2 renders an employee completely ineligible for unemployment insurance benefits in that time period. Wis. Stat. § 108.05(4)(b), on the other hand, concerns vacation pay and its classification as wages for the purpose of calculating an employee's potential eligibility for partial unemployment insurance benefits. Given this statute, it is the case that the unemployment insurance law expressly contemplates that an individual on vacation may be eligible for unemployment insurance benefits, and this express contemplation is inconsistent with an interpretation of Wis. Stat. 108.04(1)(b)2 that includes vacations within voluntary leaves of absence.

The commission therefore finds that, in weeks 25 and 26 of 2002, the employee was not on a voluntary leave of absence granted for a definite period, within the meaning of Wis. Stat. § 108.04(1)(b)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance in weeks 25 and 26 of 2002, if she is otherwise qualified.

Dated and mailed February 5, 2003
ertlshe . urr : 105 : 1 AA 126.1  UW 995

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is necessary where the credibility of the witnesses is in issue. It should be apparent, from a reading of the decision, that the commission's reversal is on a matter of law, specially the scope of Wis. Stat. § 108.04(1)(b)2, and was not due to a differing credibility assessment from that made by the administrative law judge.


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uploaded 2003/05/30