ELLIOTT L LACEFIELD, Employee

SHORE PERSONNEL 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 during about 19 months for the employer, an operator of a staffing business. His last day of work was December 7, 2001 (week 49).

On May 10, 2002 (week 19), the employer offered the employee a job to begin on May 13, 2002 (week 20). The work was to be as a laborer/blaster at an hourly rate of $7.50 on the client's second shift. When the employee applied for work with the employer, he had stated that he could work on the first and third shifts, only. He would not work on the second shift because he cared for his girlfriend's children. He reminded the employer of that restriction and he was told that the employer would attempt to find another assignment. In his labor market, approximately 32 percent of those similarly employed work during second-shift hours.

The issue to be decided is whether the employee failed to accept an offer of work and, if so, whether good cause existed for failing to accept that offer.

Wis. Stat. § 108.04(8)(a) provides, in part, as follows:

If an employee fails, without good cause, to accept suitable work when offered, the employee is ineligible to receive benefits until 4 weeks have elapsed since the end of the week in which the failure occurs and the employee earns wages after the week in which the failure occurs equal to at least 4 times the employee's weekly benefit rate under s. 108.05(1) in employment or other work covered by the unemployment insurance law of any state or the federal government.

Wis. Stat. § 108.04(9)(b) provides, in part, as follows:

(9) Protection of Labor Standards. Benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:

(b) If the wage, hours (including arrangement and number) or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;

The employee was offered work and failed to accept that work. While he claimed that the offer was withdrawn, he nevertheless refused the work. The hours of work were prevailing, as more than 25% of those similarly employed work second shift. The employee's childcare responsibilities did not provide him with good cause for refusing the employer's offer of work. The employee did not establish that he had any legal responsibility to care for his girlfriend's children. The employee is free to undertake such responsibility, but it does not provide him with good cause for refusing an offer of suitable work.

The commission therefore finds that in week 20 of 2002, the employee failed, without good cause, to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a), and that the wages, hours (including arrangement and number), or other conditions of that work were not substantially less favorable to the employee than those prevailing for similar work in the labor market, within the meaning of Wis. Stat. § 108.04(9)(b).

The commission further finds that the employee was paid benefits in the amount of $6,763.00 for weeks 20 through 42, and 45 through 52 of 2002, and weeks 1 and 2 of 2003, 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). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2002, and until four weeks elapse since the end of the week in which the failure occurred and the employee has earned wages in covered employment after the week of failure equal to at least four times the weekly benefit rate which would have been paid had the failure not occurred. The employee is required to repay the sum of $6,763.00 to the unemployment reserve fund.

Benefits otherwise chargeable to a contribution employer's account will be charged to the fund's balancing account whenever an employee of that employer fails, without good cause, to accept suitable work offered by that employer.

Dated and mailed February 28, 2003
lacefel . urr : 132 : 1 :   SW 815

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on a differing impression of witness credibility but on reaching a different legal conclusion based on the evidence presented at the hearing.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

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uploaded 2003/03/10