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

IN RE J. DOE, 03006272MD

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03006272MD


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 three years as a licensed practical nurse for the employer, a nursing home. The employee's last day of work was July 21, 2003 (week 30).

The employee experienced marital problems including physical abuse by her spouse during the course of her employment. The ALJ took administrative notice that the employee's spouse had been charged with domestic abuse on February 18, 2003. In an attempt to save the marriage the employee agreed to move with her husband to Minnesota to be closer to his relatives. In late June or early July 2003 the employee requested a leave of absence to try to secure work in Minnesota before ultimately deciding to move there. The employer denied the employee's request. Subsequently, the employee provided notice of her termination.

Prior to her resignation, on July 16, 2003, the employee's husband physically abused the employee again, resulting in a police investigation. The local police department prepared a "contact prohibition" pursuant to Wis. Stat. § 968.075. Wis. Stat. § 968.075(5) authorizes law enforcement to arrest a domestic abuser and requires a 72-hour contact prohibition of the victim by the arrestee. The form was prepared by the police on July 16, 2003, after the incident between the employee and her spouse. However, because the employee's spouse was at large (evading arrest because of an existing bench warrant) the local police department was unable to arrest the spouse under this statute. (1)

On July 17, 2003, the employee worked her next regular shift. At the end of her shift she realized her purse was missing and filed a police report that it had been stolen. On July 18, 2003, the employee gave the employer a written withdrawal of her resignation. The employer acknowledged the withdrawal and accepted it. The employee was next scheduled for work on July 18, 19 and 20. The employee missed work on those dates due to the domestic abuse incident involving her spouse and ensuing problems from her missing/stolen purse. Upon returning to work on July 21, 2003, the employee's supervisor met with the employee to review her attendance. At that time, the supervisor informed the employee she was a good worker but could not miss any further work because it would jeopardize her employment.

The employee did not report to her next scheduled shift of August 1, 2003, because at the end of her shift of July 21, 2003, the employee's spouse returned to harass and threaten her again. Because the employee was unable to get the police to arrest her husband under the contact prohibition of Wis. Stat. § 968.075 she fled the state to a women's shelter in Minnesota. The employee believed she would soon return to her job in Beloit. However, upon receiving advice at the women's shelter, the employee decided against returning to the state and notified the employer by letter on July 30, 2003 that she was residing at a women's shelter and could not return to work.

The issue for review is whether the employee's quitting to relocate due to the domestic abuse amounted to a quit exception within the meaning of Wis. Stat. § 108.04(7)(s). This subsection provides that an employee may be eligible for benefits if the employee terminates his or her work due to domestic abuse, concerns about personal safety or harassment, or the concerns about the safety or harassment of family members who reside with the employee or other household members. However this subsection requires that before terminating employment because of domestic abuse, the employee must obtain a temporary restraining order or an injunction under s. 813.12, 813.122, 813.123, 813.125 or 813.127 or possess a foreign protection order recognized under s. 813.128 and further demonstrate to the department that the order has been or is reasonably likely to be violated.

The ALJ found that although a restraining order or injunction had not been issued, one would have been issued had the spouse not evaded service. The ALJ then reasoned that to deny benefits under this statutory exception would violate the spirit of the law and therefore allowed benefits under the domestic abuse exception.

The department timely petitioned the commission and argues that the relevant subsection is unambiguous and the issuance of a temporary restraining order or an injunction prior to termination must exist before this exception can be applied. Because there is no proof that the employee obtained a temporary restraining order or an injunction under Chapter 813, the department correctly argues that the employee failed to meet the statutory requirements under the domestic abuse exception found at Wis. Stat § 108.04(7)(s).

The ALJ therefore erred when she equated the "contact prohibition" authorized under Wis. Stat. § 968.075 as the statutory equivalent of a temporary restraining order or an injunction issued under Chapter 813. Regrettably, the domestic abuse quit exception does not consider the 72-hour cooling off period law enforcement agencies can enforce without a judicial proceeding under Wis. Stat. § 968.075. Therefore, this quit exception cannot be applied to the facts at hand.

The commission therefore finds that in week 31 of 2003, the employee terminated work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a) of the statutes, and that this quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits amounting to $5355 to which she is not eligible and to which the employee is not entitled within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of these overpaid benefits may be waived.

Wis. Stat. § 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. "Departmental error" as defined in Wis. Stat. § 108.02(10e) includes the misapplication or a misinterpretation of the law. The commission concludes that the overpayment in this case results from departmental error when the ALJ misapplied the law and not from the fault of the employee. The commission therefore waives the $5355 overpayment stemming from the employee's claim for benefits in this case pursuant to Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 31 of 2003, and until four weeks have elapsed since the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee's overpayment of $5355 is waived and the employee does not have to repay such sum to the Unemployment Reserve Fund.

Dated and mailed December 12, 2003
In re J. Doe, 03006272MD . urr : 135 : 3   VL 1016.06   BR 335.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission reverses the appeal tribunal decision as a matter of law. Wis. Stat. § 108.04(7)(s) requires that before terminating employment because of domestic abuse, the employee must obtain a temporary restraining order or an injunction under Chapter 813. The facts at hand do not support a conclusion that either a temporary restraining order or an injunction had been obtained through a judicial proceeding pursuant to Chapter 813. Rather, the facts support a finding that a contact prohibition under Wis. Stat. § 968.075 had been attempted by a local enforcement agency. The ALJ therefore committed departmental error by misapplying Wis. Stat. § 108.04(7)(s) to the facts at hand. Consequently, the employee's overpayment stemming from the ALJ's decision is waived based upon departmental error and the fact that the employee was paid benefits through no fault of her own.

cc: 
Gregory Frigo
Beloit Heathcare & Rehab Center


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Footnotes:

(1)( Back ) A contact prohibition can be imposed under Wis. Stat. § 968.075(4) without an arrest of the domestic abuser if a law enforcement officer prepares a report to the District Attorney's office. The record does not contain any proof that the local police department prepared and/or filed such a report with the District Attorney in the county where the acts occurred.

 


uploaded 2003/12/16