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

JESSE M VULTAGGIO, Employee

DEANCARE HMO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02006676MD


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 about 2 years as an information technology intern for the employer, a health maintenance organization. His last day of work was September 13, 2002 (week 37), when he was laid off. He initiated a claim for unemployment insurance in week 38, the calendar week ending September 21. Thereafter, he began work for another employing unit.

As of week 38 of 2002, the employee has attended a vocational college as a part-time student to increase his expertise in computer troubleshooting. He has the following schedule: Tuesdays from 1:00 p.m. until 2:15 p.m. and from 5:30 p.m. to 8:00 p.m.; Wednesdays from 5:30 p.m. to 8:00 p.m.; and Thursdays from 1:00 p.m. until 2:15 p.m. Although he does not want to drop those classes, he is willing to work full time around his class schedule.

In the employee's labor market area, 67% of jobs suitable for him to perform based upon his education and work history occur during first-shift hours. About 16% occur during the second shift, with 5% in the third shift and about 12% in a variety of shift combinations. His class attendance removes him from the vast majority of first-shift positions and from a minimal portion of the other shifts, so that he remains available for about 33% of all full-time suitable work.

The issue to be decided is whether the employee was able to work and available for work in the employee's labor market beginning in week 38 of 2002.

Wisconsin Statute § 108.04(2)(a), provides that to be eligible for benefits for any week in which no wages are earned a claimant must be available for work. The statutes are implemented by Wis. Admin. Code ch. DWD 128. Wis. Admin. Code § DWD 128.01(1) provides that to be eligible for benefits for any week of total unemployment the employee must be able to work and available for work. Wis. Admin. Code § DWD 128.02(2)(a) provides that a worker who, without good cause, restricts his or her opportunities to less than 50 percent of full-time suitable jobs in the locality will not be available for work. Wis. Admin. Code § DWD 128.02(2)(b) provides that a worker subject to uncontrollable restrictions must be able to work in at least 15 percent of suitable jobs in his or her labor market. Finally, Wis. Admin. Code § DWD 128.01(5) provides that the department may require a claimant who is partially unemployed to comply with the requirements of Wis. Admin. Code ch. DWD 128 if there is some definite indication that the claimant is not genuinely interested in working full time.

The employee contended that he has been able to work and available for work in his labor market area as of week 38 of 2002. Given his willingness to work full time around his class schedule, that contention can be sustained only in part. Although his efforts to further his employability are admirable, school attendance does not constitute good cause for his restricting his availability for work. As a result, he must be available for 50% of all suitable jobs in order to be available for full-time work under the unemployment law, for any week in which no wages are earned. However, Wis. Admin. Code § DWD 128.01(5), states that the availability requirement for a partially unemployed claimant applies only if there is some definite indication that the claimant is not genuinely interested in working full time. The employee is willing to work full time.

Department records reflect that since initiating his benefit claim in week 38 of 2002, the employee reported wages in weeks 40 through 45 of 2002. He reported no wages in weeks 38 and 39 of 2002. The employee did not file benefit claims in weeks 46 through 50 of 2002. As of week 51 of 2002, a subsequent determination found the employee able to work and available for work and the employee has been receiving benefits.

The commission therefore finds that, in weeks 38 and 39 of 2002, the employee was not able to work and/or available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code ch. DWD 128.

The commission further finds that in weeks 40 through 45 2002, the employee was not subject to availability requirements because he was partially unemployed within the meaning of Wis. Stat. § 108.04(2)(a), and Wis. Admin. Code ch. DWD 128.


DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for unemployment benefits in weeks 38 and 39 of 2002. The employee is eligible for benefits in weeks 40 through 45 of 2002, if he is otherwise qualified.

Dated and mailed March 14, 2003
vulktaj . urr : 132 : 1 : AA 205   AA 253

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

James T. Flynn, Commissioner


MEMORANDUM OPINION

The commission did not consult with the ALJ regarding her impressions of witness credibility or demeanor. The commission's partial reversal of the ALJ's decision is not based on the credibility of the witnesses but is as a matter of law. There was no finding made by the ALJ, and the record does not support any inference, that the employee is unwilling to work full time.


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