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

JAMES M JAEGER, Employee

LA CROSSE MOSAIC TILE CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03000870LX


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 for twenty years as a skilled tile setter. In his most recent employment, he earned $26 per hour. He was laid off in week one of 2003, when the employer decided to use independent contractor tile-setters instead of employees.

After his layoff, the employee sought work in his field as an employee. He was looking for tile-setting work paying $20 per hour. When he was first laid off, he was unable to accept any independent contractor work from his previous employer or anyone else because he did not have liability or worker's compensation insurance. Ultimately, he acquired insurance and accepted some independent contractor work from various clients.

The issue to be decided is whether the employee is able and available for suitable work.

Department rules provide at Wis. Admin. Code § DWD 128.01(1), that employee's are eligible "only if the claimant is able to work and available for suitable work."

Suitable work is defined at Wis. Admin. Code § DWD 100.02 as "work that is reasonable considering the claimant's training, experience, and duration of unemployment as well as the availability of jobs in his labor market." [emphasis added]

Wis. Admin. Code § DWD 128.10(2)(5) provides that a claimant may not without good cause restrict his availability for work to less than 50 % of the full time opportunities for suitable work in the labor market.

Unemployment law permits an individual a canvassing period of up to six weeks to seek work commensurate with his skills and prior wage and to refuse jobs which involve a lower grade of skill or significantly lower wage. (Wis. Stat. § 108.04(8)(d) Thereafter, he may be asked to lower his sights on a sliding scale basis and accept less desirable work. In this case, the employee was laid off in week 1 of 2003 and the ALJ found that he was not able and available as of that same week because he was seeking tile-setting work paying six dollars less than his most recent employment. He should not be denied benefits for failing to seek work that he could with good cause refuse under the canvassing statute.

The commission therefore finds that the employee restricted his availability with good cause. The employee has good cause to refuse a job involving lower skills or lower wage under canvassing, and that same good cause permits him to limit his search to suitable work based on those same skills and similar wages at least during the early weeks of his unemployment.

The commission therefore finds that as of week 1 of 2003, the employee was able to work and available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and chapter DWD of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 1 of 2003, if he is otherwise qualified.

Dated and mailed December 18, 2003
jaegeja . urr : 178 : 1 AA 210  AA 235

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission reverses as a matter of law and not due to any differing assessment of witness credibility.

cc: Attorney Heidi M. Szatmary


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uploaded 2003/12/22