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

VADA L EVANS, Employee

PRIVATE INDUSTRY COUNCIL OF MILWAUKEE COUNTY , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02609254MW


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 approximately two years, most recently as a manger, for the employer, a training business. His last day of work was September 5, 2002 (week 36) and he initiated a claim for unemployment insurance benefits on September 30, 2002 (week 40).

The issue to be decided is whether during weeks 37 through 39 of 2002, the employee failed to timely notify the department of an intention to initiate or to reactivate a benefit claim and, if so, whether the failure was due to any exceptional circumstances which would justify a waiver of the notification requirement.

The employee was suspended from his employment on September 5, 2002. He was informed that he was discharged from his employment on or about September 20, 2002. He opened his claim for unemployment insurance benefits on September 30, 2002. He delayed opening his claim because, during the suspension period, he expected to return to work. After the discharge he believed he had to wait a week before filing.

The employee's position is that his failure to initiate his claim in a timely manner was due to exceptional circumstances. The commission cannot agree. The employee was aware that he had been suspended so that the employer could investigate a serious allegation against him. While he believed that he would be cleared of the charges and returned to work there is nothing in the record to indicate that the employee was told he would be paid during the suspension period.

Further, when the employee was discharged, he failed to initiate his claim because he believed he had to wait a week to file for benefits. The employee had filed for benefits several years prior to his discharge. Further, there is nothing in the record to indicate that the employer failed to have an unemployment insurance poster in a prominent location. As such, the commission cannot conclude that the employee's failure to initiate his claim in a timely manner was due to exceptional circumstances.

In this case the claimant initiated his benefit claim on September 30, 2002, (week 40). His claim was established within seven days of the close of week 39 of 2002, the calendar week ending September 28, 2002. Accordingly, the employee is eligible for benefits beginning in week 39 of 2002.

The commission therefore finds that, from weeks 37 through 38 of 2002, the employee failed to notify the department of an intention to initiate or to reactivate a benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129, and that the reasons for the failure do not constitute exceptional circumstances so as to permit a waiver of the notification requirement, within the meaning of that section and chapter.

The final issue is whether the overpayment should be waived. The commission notes that in this case, the ALJ found that the employee's failure to initiate his claim in a timely manner was the result of exceptional circumstances because he thought he would return to his job and because he thought he had to wait one week after being discharged to file. There was nothing in the record to indicate whether the employer had an unemployment insurance notice posted at the workplace. However, the employee testified that he filed for benefits about three years prior to the hearing. Thus, the employee should have at the very least, contacted the department to find out what the requirements were, assuming that he was unaware of those requirements. The commission has concluded in prior decisions that the belief that one will return to work is not an exceptional circumstance that would justify waiver of the timely notification requirement. See Slavko D. Arsikic v. LIRC and Badger Technical, Case No. 98-CV-004788 (Wis. Cir. Ct., Milwaukee County, December 2, 1998), David L. Thomas v. Hurd Millwork Co. Inc., UI Dec. Hearing No. 98-201821MW (LIRC March 31, 1999).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in weeks 37 and 38 of 2002. Thereafter, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed June 9, 2003
evansva . urr : 145 : 1   CP 360

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not reverse with the ALJ because of any different assessment of witness credibility and demeanor, but reverses the ALJ's decision, based on the facts found by the ALJ, as a matter of law.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/06/18