JILL A KASUBOSKI, Employee

WISCONSIN BELL 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 had worked for the employer for about thirty years as a telephone directory operator, and continued to do so as of the time of the hearing. The employer had paid more than 80 percent of the employee's base period wages.

The employer had a policy that allowed workers to take unpaid time off if they requested it and if the needs of the business allowed it. The employer posted a sign-up sheet for workers to sign up for time off because it gave the workers flexibility to have extra time off. If none of the workers requested unpaid leave the employer would do extra development with them. The employer would not reduce the workers' hours if none of the workers requested unpaid time off.

The employee's regular, weekly work schedule consisted of five seven and one-half hour shifts. The employee typically signed up on the employer's sign-up sheets requesting unpaid leave. The employer was not able to grant all the leave that the employee requested and would inform her what days she would be unable to take leave.

The employee, sometime before the week beginning March 31, 2002 (week 14), signed up asking to be off for three days of work that week. The employer granted that request and the employee worked two days that week. She took one floating holiday.

The issue to be decided is whether the employee was with due notice called on by her current employing unit to report for work actually available during week 14 of 2002, and if so, whether she was eligible for benefits based on the amount of wages the employee could have earned in that week by performing all of the available work.

The employee's regular schedule would have provided for five days of work per week, at seven and one-half hours per shift, or 37 and one-half hours of work each week. The parties agreed that the employee would have worked all those hours had she not requested time off. The fact that the employer allowed her to take time off, when it could, does not change the fact that she had a regular schedule and could have worked it. The employee was paid $17.82666 per hour, based on a 37 and one-half hour week. During week 14, the employee requested and received five days of excused absence. Had she worked all the hours available to her she could have earned $668.50. The employee's weekly benefit rate is $193. Based on the $668.50 she could have earned, she is not entitled to any payment of benefits in week 14 of 2002.

The commission therefore finds that in week 14 of 2002, the employee was with due notice called on by her current employing unit to report for work actually available within the week and was unavailable for, or unable to perform, some or all of such available work, within the meaning of Wis. Stat. § 108.04(1)(a).

The commission further finds that had the employee performed all available work in week 14 of 2002, she could have earned wages totaling $668.50, resulting in a weekly benefit payment totaling $0.00, within the meaning of Wis. Stat. § 108.02(26) and Wis. Stat. § 108.05(3).

The commission further finds that the employee was paid benefits in the amount of $193.00 for week 14 of 2002 for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), be cause although the over payment 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 modified to conform to the following findings and, as modified, is reversed. Accordingly, benefits for week 14 of 2002 will be reduced by including in the computation of benefits payable the amount of $668.50 that the employee would have earned had the employee performed all of the available work. The employee is not eligible for a weekly benefit payment. The employee is required to repay the sum of $193.00 to the Unemployment Reserve Fund.

Dated and mailed April 11, 2003
kasubj1 . urr : 145 : 1 AA 110 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing but reverses his decision because the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.

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.

cc: 
Wisconsin Bell, Inc. (Hoffman Estates, Illinois)
Continental Consultants

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uploaded 2003/04/25