In the matter of the unemployment benefit claim of

MARY E. SICA, Employee

Involving the account of

WILDE PONTIAC CADILLAC INC, Employer

On April 16, 1994, the Department of Industry, Labor and Human Relations issued an initial determination which held that the employe's failure to report in person prior to April 14, 1994 was not due to an exceptional circumstance. The employe timely requested a hearing on the adverse determination, and hearing was held on May 11, 1994 in Waukesha, Wisconsin. On May 24, 1994, an administrative law judge for the department issued an appeal tribunal decision affirming the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter is now ready for disposition.

Based upon the applicable law and the record and evidence in this case, the commission makes the following:

The employe worked approximately a year as the finance manager for the employer, a car dealership. Her last day of work was November 16, 1993 (week 47). The employe only reported to a local employment office on April 14, 1994 (week 16) in order to file an application for unemployment benefits, at which time she also claimed benefits for weeks 47 of 1993 through 15 of 1994. The issue in this case is whether exceptional circumstances justify waiver of the otherwise applicable requirement that a claimant report in person to a public employment office as a condition of unemployment benefit eligibility. The commission believes exceptional circumstances are present, and so reverses the appeal tribunal decision.

The employe had several reasons for not reporting in person before week 16 of 1994, most of which would not constitute an exceptional circumstance pursuant to the applicable administrative code provision, sec. ILHR 129.01 (3). These reasons included that she was unaware of unemployment compensation procedures, she believed her income was too high for her to be eligible for benefits, she intended to return to work the employer, and she thought a claim for benefits might cause problems for her boyfriend (who was the general manager of another dealership owned by one or more persons who owned the employer). None of these reasons have been held to constitute an exceptional circumstance justifying waiver of the in-person reporting requirement of Wis. Admin. Code. sec. ILHR 129.01 (1). The employer also did not have an unemployment-notice poster displayed in areas of the dealership where certain of the employer's workers would have occasion to see the notice-poster. The employer had only one notice-poster displayed at the work site, next to the time clock in the service area of the dealership. The employe, however, as the finance manager for the employer, had no reason ever to be in that area of the work site and, indeed, had never been to that area of the dealership until after her employment had ended.

Wis. Admin. Code sec. ILHR 120.01 requires employers to post unemployment compensation notice-posters "at suitable points (on bulletin boards, near time clocks, etc., where all employes will readily see them)." The employer in this case did not meet this requirement since, by placing the notice only in the service area, the employes of the employer in job positions such as the employe would not see the notice. Wis. Admin. Code sec. ILHR 129.01 (3) states that the department shall waive the timely in-person reporting requirement if an exceptional circumstance exists. One enumerated exceptional circumstance is the failure of the claimant's employer to post or maintain any notice relating to claiming unemployment benefits. These administrative code provisions, taken together, require waiver of the in-person reporting requirement not only where an employer has posted no notices but also where the employer's posting does not meet the requirement of Wis. Admin. Code sec. ILHR 120.01. The commission therefore finds that, in weeks 47 of 1993 through 15 of 1994, the employe's failure to report in person to a local employment office to initiate or reactivate her benefit claim was due to an exceptional circumstance within the meaning of Wis. Admin. Code sec. ILHR 129.01 (3), allowing waiver of the in-person reporting requirement of Wis. Admin. Code sec. ILHR 129.01.

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 47 of 1993, if she is otherwise qualified.

Dated and mailed July 22, 1994
105 : CD8970 CP 360

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The appeal tribunal held that, given the employe's many reasons for not having filed her claim for benefits sooner, the employer's failure to properly post unemployment compensation notices was not a cause of her failure to report. The language of the administrative code provision at issue, ILHR 129.01 (3), however, is not permissive but rather mandatory. That is, the department shall waive the in-person reporting requirement any time an exceptional circumstance is present. The failure of an employer to properly post unemployment compensation is such a circumstance and it is not relevant that the employe had additional reasons why she did not file her claim sooner.

cc: Attorney Jeffrey W. Jensen

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