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

MICHAEL C YOUNG, Employee

TREASURY DEPARTMENT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03005623MD


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 began working for the federal government in July of 2001 as a tax specialist for the IRS. He is currently employed in the IRS office located in Santa Ana, CA.

In January of 2003 the employee moved from Fresno, CA, to Anaheim, CA in order to be with his family. Because the employer had no immediate position available for him in the Anaheim area, the employee decided to take an unpaid leave of absence until a position materialized. In week 4 of 2003 the employee requested and was granted a ten-week (416 hour) leave of absence.

The question presented is whether the employee was eligible for benefits as of week 4 of 2003. The statutes provide that an employee is ineligible for benefits while on a voluntary leave of absence granted for a definite period, and until the period ends or the employee has returned to work, whichever occurs first. See Wis. Stat. § 108.04(1)(b)2.

The commission therefore finds that, as of week 4 of 2003, the employee was on a voluntary leave of absence granted for a definite period, within the meaning of Wis. Stat. § 108.04(1)(b)2.

The commission further finds that the employee was paid benefits in weeks 5 through 25 of 2003 in the total amount of $6,757, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 4 of 2003 and until the voluntary leave of absence ends or the employee returns to work, whichever occurs first. The employee is required to repay the sum of $6,757 to the Unemployment Reserve Fund. This matter is remanded to the department for an investigation and determination as to whether the employee was also on a voluntary leave of absence for a definite period of time in weeks 40 through 46 of 2002.

Dated and mailed February 6, 2004
youngmi . urr : 164 :  AA 126.1  BR 335.04 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission agrees with the appeal tribunal's conclusion that the employee is ineligible for benefits as of week 4 of 2003, but differs with its rationale that the employee voluntarily terminated the employment relationship. The employee requested and was granted a leave of absence for a definite period of time. During his leave of absence the employee was considered to be an employee of the employer, albeit in unpaid status. He reported 80 hours of leave without pay each pay period. The commission believes that there was an ongoing employment relationship at the time the employee initiated his claim, and it has modified the appeal tribunal decision to reflect this differing analysis.

In his petition for commission review the employee argues that the reason he relocated to Fresno in September of 2002 and the reason he relocated to Anaheim in January of 2003 are the same, yet the appeal tribunal concluded that he was eligible for benefits at the time of his initial claim, but not eligible for benefits when he filed his subsequent claim. Although it does appear that the employee received benefits from September through November of 2002, the appeal tribunal did not make any findings regarding his eligibility for benefits during that period since that issue was not before her, and the sole issue presented at the hearing was whether the employee is eligible for benefits as of week 4 of 2003. However, as the employee has pointed out, there does appear to be an inconsistency in the treatment of his claim for weeks 40 through 46 of 2002. The commission has, therefore, remanded for a determination as to whether the employee was also on a voluntary leave of absence for a definite period at that time.

In his petition the employee also argues that he has repeatedly asked to establish a new benefit year and to have his wages "assigned" to the State of California, but that his request has been denied without explanation. He contends that he should be able to set aside his benefit year based on department error. However, the employee's benefit year was established when he filed his claim and received benefits in October of 2002, and the commission sees no reason to believe that the department made any error in doing so. To the extent the employee has alleged any "error" by the department -- and it is not entirely clear to the commission what error he believes was made -- such error apparently occurred when he reinstated his claim in June of 2003, and not when the benefit year was established in October of 2002. Consequently, the commission sees no basis under which the employee's benefit year could be set aside.

Finally, the employee argues that his overpayment should be waived based upon department error. The employee suggests that the appeal tribunal decision was made based upon a differing assessment of available information, and asserts that this constitutes department error. However, the statutory definition of "departmental error" does not encompass a differing interpretation of available information, see Wis. Stat. § 108.02(10e), and the commission has consistently held that a differing interpretation of available information does not amount to department error. Further, because department records indicate that the employee advised the department he had been laid off, it appears that the overpaid benefits may have been the result of fault on the part of the employee, a circumstance which does not warrant waiver of the overpayment.

cc: IRS Appeals Office-Fresno


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