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

KELLI  M  LANGAN, Employee

JOHN Q HAMMONS HOTELS LTD PTRSHP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03004685MD


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 approximately 10 months as a part-time bartender for the employer, a hotel. Her last day of work was May 31, 2003 (week 22), when she quit.

The employee worked full-time for a medical center from May 2002 through March 7, 2003, when she was discharged. In August 2002, the employee accepted the part-time job with the employer at issue in order to supplement her income. The employee quit her part-time job because she lost her free childcare.

The issue to be decided is whether the employee quit her part-time work because the loss of her full-time employment made it economically unfeasible to continue her part-time work, within the meaning of Wis. Stat. § 108.04(7)(k). Whether work is "economically unfeasible" under Wis. Stat. § 108.04(7)(k) is determined by applying Wis. Admin. Code § DWD 132.03(3)(b), which provides:

To determine whether the loss of the full-time work makes it economically unfeasible for the claimant to continue the part-time work, the department shall add the amount of the claimant's gross wages from the part-time work for the week preceding the week in which the claimant terminates the part-time work to the amount of unemployment benefits payable for that week and subtract from this sum the expenses incurred by the claimant in that week for the part- time work. If the remainder is less than the claimant's full weekly benefit rate for that week, the department shall consider it economically unfeasible for the claimant to continue the part-time work.

Wis. Admin. Code § DWD 132.03(1)(a), defines "expenses" as those "incurred by the claimant to maintain part-time work and includes travel expenses, child care expenses and any other reasonable work-related expenses." The commission has previously noted that expenses referred to in Wis. Admin. Code § 132.03(3), are those associated with the part-time work. In Miller v. National Delivery Service Inc., UI Dec. Hearing No. 96600473MW (LIRC Apr. 10, 1996), the commission stated:

The employee's potential sources of income outside of his income from part-time employment and weekly unemployment benefits are not considered in determining the economic feasibility of continuing in the part-time work. Likewise, the employee's non-work related expenses such as his mortgage, utilities, food, and clothing are not considered in determining the economic feasibility of continuing in the part-time work. Instead, only the expenses associated with that part-time work are considered.

The testimony at the hearing did not establish the amount of wages that the employee earned in the week prior to quitting. The employee testified that she worked 15 hours per week and was paid either $6.50 or $10.10. If she worked 15 hours at $6.50 per hour she would have grossed wages of $97.50. The employee's weekly benefit rate is $220. The employee was entitled to benefits in the amount of $174. (1)   The employee's part-time wages when added to the amount of benefits payable totals $271.50. The only evidence as to the employee's expenses was that she would average $10 in gas to take her child to her child-care provider, which would be considered an expense associated with her part-time work. Subtracting the expenses from $271.50 leaves a remainder of $261.50, which is greater than the employee's full weekly benefit rate. Therefore, the record does not support a finding that continuing the part-time work was economically unfeasible for the employee. (2)

The employee is a similar position as the employee in Fasbender v. Distribution Services, Inc., UI Dec. Hearing No. 02200860EC (LIRC Aug. 1, 2002). In Fasbender the commission stated:

The employee correctly points out that there is a test to determine economic unfeasibility set forth in Wis. Admin. Code. § DWD 132.03(3)(b). Further, the employee correctly points out that childcare expenses are considered reasonable work-related expenses. Wis. Admin. Code § DWD 132.03(1)(a). See also Amy M. Kuhlman v. Kirlins of Wisconsin (LIRC, March 29, 2002). However, the record does not establish that the employee had any child care expenses. The employee did not state how much she paid her boyfriend to watch her son. . .. The employee indicates in her petition that she would have to begin paying for a sitter, and states that her boyfriend had been providing free child care. However, the code provides that the employee's wages from the week preceding the week she quit her part-time work are to be considered. In addition, the employee must also deduct the expenses incurred in that same week. In this case, the employee is not asserting that she had expenses in the week prior to her quitting her job with the employer that made it economically unfeasible for her to continue. The employee instead asserts that she was going to have expenses that would make it economically unfeasible to continue working, but she quit prior to incurring those expenses.

The commission therefore finds that in week 22 of 2003, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), and that such quitting was not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $6,267 for weeks 22 through 50 of 2003, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

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

Wisconsin Statute § 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. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b). The ALJ failed to apply Wis. Admin. Code § DWD 132.03(3)(b).

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), and the overpayment was the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 22 of 2003, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equal to at least four times the weekly benefit rate that would have been paid had the quitting not occurred. Recovery of the overpaid benefits for weeks 22 through 50 of 2003, in the amount of $6,267 is waived. The employee is not required to repay the department, nor will the overpaid benefits be recovered by any other means. The appropriate employer account(s) will be credited immediately with the overpaid amount.

Dated and mailed December 23, 2003
langake . urr : 132 : 1 : VL 1039.09  BR 335.01

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based on the demeanor or credibility of witnesses.

 

cc: John Q. Hammons Hotel (Madison, Wisconsin)


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Footnotes:

(1)( Back ) Under Wis. Stat. § 108.05 (3)(a), an employee's benefit entitlement for a week of partial unemployment is determined by disregarding the first $30 of wages earned and reducing the weekly benefit by 67% of the remaining amount. The employee's benefit entitlement is therefore determined by subtracting $30 from her wages of $97.50, which leaves $67.50. That sum is multiplied by 67% leaving $45.225. That amount is subtracted from the employee's weekly benefit rate of $220 resulting in benefit payment of $174.775. Pursuant to Wis. Stat. § 108.05 (9), that amount is rounded down to the next lowest dollar, or to $174.

(2)( Back ) Department records indicate the employee reported $80 in wages in the week preceding the week she quit. The work would not be economically unfeasible using that figure. [$80 - $30 = $50. $50 x .67 = $33.50. $220 - $33.50 = $186.50. $186 + $80 = $266. $266 - $10 = $256.] 

 


uploaded 2003/12/29