BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

MICHAEL A. EVERSEN, Employee

Involving the account of

CALEY CORPORATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 90-400602


ORDER

Pursuant to the authority granted in section 108.09 (6)(d), Stats., the Labor and Industry Review Commission orders that additional testimony be taken before an Administrative Law Judge, acting as a Deputy for the Commission, with respect to whether the employer failed to post or maintain any notice as to claiming unemployment benefits which had been supplied to it under Wisconsin Administrative Code Chapter ILHR 120.01, within the meaning of Wisconsin Administrative Code, Chapter ILHR 129.01 (3)(e).

Dated and mailed June 5, 1990
110 : CD7644  CP 360  CP 390  PC 715  PC 734 

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE: Among the assertions made by the employe with respect to his failure to report in person to open a claim for benefits during week 5 of 1990, was the fact that the employer did not have posted a current DILHR informational poster concerning unemployment benefit claiming procedures, but rather only an old poster (dating to 1981) which contained outdated and obsolete information tending to suggest (incorrectly, under present law) that a claim for benefits for a week in which some work was done could be made by reporting no later than the week in which the pay was received. The Administrative Law Judge concluded that this was irrelevant, based on her finding that the employe did not actually rely on any inaccurate information from that obsolete poster. The Commission has concluded, however, that the question of the employe's reliance on the poster is not determinative.

A claimant is eligible for benefit purposes as of the first week of total or partial unemployment in which the claimant reports in person to a public employment office to initiate the benefit claim. Wisconsin Administrative Code, Chapter ILHR 129.01 (3), provides that the Department shall waive the requirements of reporting in person, as set forth by that section, if exceptional circumstances exist. That rule further provides, in sub. (e), that exceptional circumstances include:

"The failure of the claimant's most recent employer to post or maintain any notice as to claiming unemployment benefits which has been supplied to the employer under section Ind-UC-120.01."

The reference is to Wisconsin Administrative Code, Chapter ILHR 120.01, "Notice-Posters as to claiming unemployment benefits," which provides:

"Each covered employer shall keep his employes informed as to Chapter 108, Stats., by posting appropriate notice-posters supplied to him by the Employment Security Division. Such notices shall be permanently posted by each such employer at suitable points (on bulletin boards, near time clocks, etc., where all employes will readily see them) in each of the employer's work places and establishments in Wisconsin."

The provisions of ILHR 129.01 (3), are, by their terms, mandatory: they provide that the Department "shall" waive the in-person reporting requirements "if exceptional circumstances exist". The "exceptional circumstance" described in ILHR 129.01 (3)(e) relates solely to the failure of a claimant's most recent employer to post or maintain required notices. Prior to amendments which became effective in 1984, the Department's rules provided for a waiver where the failure to report and register was "due to" the described exceptional circumstances, including failure of the employer to post required notices, but the present language clearly does not require that the failure to post be an actual cause of a claimant's failure to report in person. The present language reflects the evident judgment of the Department, that the risks that employes will fail to claim benefits properly due them if they are not informed of their rights by the posters, is such that waiver of the reporting-in-person requirement is appropriate in cases where the posters are not posted, irrespective of issues of actual causation. The posting duty is "a serious one", and the failure of an employer to meet it will result in a waiver of the reporting-in-person requirement, even in the presence of evidence suggesting that the employe's failure to report may not have been caused by the employer's failure to post. Sommers v. Universal Brixius Inc., (Hrg. No. 87-604357, LIRC, 10/30/87).

The Commission therefore concludes, that if the employe's employer had been supplied copies of the current DILHR informational poster relating to claiming unemployment benefits, yet had not posted or maintained those notices as required, "exceptional circumstances" would exist and the requirement of reporting in person to initiate the claim for benefits in week 5 of 1990 would have to be waived.

It is necessary to remand this matter to allow the presentation of further evidence, because the employer may have been misled as to the significance of the hearing in this matter. The notice of hearing sent to the employer contained the boldface indication:

**********IMPORTANT MESSAGES**********

"THIS ISSUE DOES NOT DIRECTLY RELATE TO THE EMPLOYE'S WORK FOR YOU, BUT YOU MAY ATTEND IF YOU CHOOSE"

Given this message on the notice of hearing, the employer may have been led to believe that the issue presented at the hearing was not going to have any impact on the liability of its unemployment compensation account for benefits relating to the claimant's unemployment. (The fact that the employer did not appear at the hearing would be consistent with this.) This impression would have been mistaken, since the eligibility of the claimant for benefits for week 5 of 1990 was at issue, and since, if "exceptional circumstances" were found to exist, and the claimant was found eligible for benefits for that week, the benefits would be charged to the employer's account. The employer should be given the opportunity to be heard on the issues on which this case may turn, such as whether it had in fact received the current informational poster from DILHR and whether it in fact had posted that poster.



Subsequent LIRC decision

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