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

ALFONSO COLLINS, Employee

BAKER MANUFACTURING COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03602928MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Delete the final paragraph of page two and insert the following:

"The next issue to be determined is whether the employee was otherwise able and available for work following his separation. Since the employee's transfer to the Milwaukee area was for the purposes of living and seeking work in the area, it cannot be found that he was unavailable for work at any time while seeking benefits. No evidence was presented at the hearing that he was physically unable to work or not available for work at any time during the period in question.

Finally, the employer's account will not be charged for the employee's benefits pursuant to sec. 108.07(8). This provision provides that benefits are chargeable to the balancing account instead of the employer's account if a prisoner's employment with a private employer is ended because the conditions of incarceration make it impossible to continue. This provision recognizes that in such instances, the termination of the employment relationship is not truly attributable to either party and the employer should not therefore bear the cost of the employee's benefits.

The commission therefore finds that in week 7 of 2003, the employee's employment was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1, but that the employee was able to work and available for work on the general labor market, within the meaning of said section."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if he is otherwise qualified. Pursuant to s. 108.07(8), Stats., benefits otherwise chargeable to the employer as an employer subject to the contribution requirements of the law shall be charged to the fund's balancing account.

Dated and mailed November 21, 2003
collial . umd : 178 : 1   AA 245 

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

In its petition for commission review, the employer argues that it is unfair to charge it for benefits to an employee for whom it is providing a public service. The commission agrees.

The ALJ found that the employee did not quit but was transferred by the Department of Corrections and was unable to continue his employment. Therefore, the ALJ correctly allowed benefits and charged them to the balancing account under Wis. Stat. § 108.07(8). This section provides in relevant part: "If a claimant is a prisoner of a state prison, as defined in s. 302.01, and has employment with an employer other than the department of correction or a private business leasing space within a state prison under s. 303.01(2)(em), and the claimant's employment terminates because conditions of incarceration or supervision make it impossible to continue the employment, the department shall charge to the fund's balancing account any benefits based on the terminated employment that are otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18."

This section was created to protect employer's from the unfairness of charging them for benefits when they are willing to employ the worker further but the employee's conditions of incarceration make that impossible. The department recognizes that such separations are not directly caused by either the employer or the employee but by the Department of Corrections. The commission has also recognized that principle in Hopkins v. Packerland Packing Company Inc., UI Dec. Hearing No.97600010EC (LIRC Mar. 27, 1997) and Mattes v. LSJ Sportswear, Inc., UI Dec. Hearing No.97600010EC (LIRC Jan. 26, 1995).

The commission has applied the statute as written and has modified the decision to show that the separation occurred under Wis. Stat. § 108.04 (1) (b) l, because the employee's employment was ended by the employer after he became unavailable for work due to a transfer by the Department of Corrections. This reflects past commission practice in characterizing such separations when the employee was unable or unavailable to perform work otherwise available with the employer.


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


uploaded 2003/11/24