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


A Department Deputy's Initial Determination held that in week 5 of 1990, the employe failed to report in person at a public employment office to initiate or to reactivate a benefit claim, and that the reasons for the failure did not constitute exceptional circumstances so as to permit a waiver of the in person reporting requirement. As a result, benefits were denied for that week.

The employe timely appealed the Initial Determination, and a hearing was held on March 15, 1990 before Administrative Law Judge Judith Allen, acting as an Appeal Tribunal of the Wisconsin Department of Industry, Labor and Human Relations. The Appeal Tribunal Decision, issued on March 16, 1990, affirmed the Initial Determination, and found the employe ineligible for benefits for week 5 of 1990.

The employe timely petitioned for review by the Wisconsin Labor and Industry Review Commission. By an Order dated June 5, 1990, the Commission ordered that additional testimony be taken before an Administrative Law Judge. Pursuant to that Order, additional testimony was taken before Administrative Law Judge Sandra L. Schulze, acting as a Deputy for the Commission, on July 6, 1990. Based on the evidence an applicable law, and having considered the arguments presented by the employe in his petition, the Commission now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two years as a trimmer operator for the employer, a trade bindery. His last day of work was Monday, January 29, 1990 (week 5). He first reported to an unemployment office to open his benefit claim o Monday, February 5, 1990 (week 6).

The issue for decision is whether the employe's failure to report in person to an unemployment office to give notice of unemployment during week 5 of 1990 (in which week he was partially unemployed) results in his disqualification for that week, or whether the requirement of reporting in person should be considered waived because exceptional circumstances existed.

Wisconsin Administrative Code Chapter 129.01(3) provides that the Department shall waive the requirement of reporting in person to initiate a benefit claim in the first week of total or partial unemployment if exceptional circumstances exist. That section further provides 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 (now Chapter ILHR 120.01). Wisconsin Administrative Code Chapter ILHR 120.01 provides that 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.

The Commission credits the testimony of the employe, that the employer herein, the employe's then most recent employer, had posted in its workplace a copy of an obsolete DILHR notice poster of procedures for claiming unemployment compensation benefits, which dated to 1981. This poster indicated (consistent with the law that prevailed at that time) that a claimant who worked less than one- half of his or her regular hours in a week could report as late as the week in which he or she was paid. This information was, however, incorrect under the law prevailing at the time of the employe's claim.

The Commission considers that under the circumstances. "exceptional circumstances" were present under Wisconsin Administrative Code Chapter 129.01(3), and that therefore the employe's obligation to report in person during week 5 of 1990 must be considered waived.

The Commission therefore finds that in week 5 of 1990, the employe failed to report in person at a public employment office to initiate or reactivate a benefit claim, within the meaning of section 108.08(1) of the Statutes and Chapter ILHR 129 of the Wisconsin Administrative Code, but that exceptional circumstances existed so as to require the waiver of the in-person reporting requirement, within the meaning of that section and chapter.

DECISION

The Appeal Tribunal Decision is reversed. Accordingly, the employe is eligible for unemployment benefits for week 5 of 1990 if he is otherwise qualified.

Dated and mailed August 21, 1990
110 - CD1001   CP 360  CP 390

/s/ Kevin C. Potter, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

NOTE:  The Commission has reversed the Appeal Tribunal as a matter of law. Although the Administrative Law Judge found that the employer had an out-of-date poster displayed, she found that the employe's reliance on that poster was not the actual cause for his failure to report in person during week 5.  However, Chapter ILHR 129.01(3)(e) does not require that an employer's failure to post or maintain notice posters be the cause in fact of an employe's failure to report in person. Rather, it merely provides that the Department shall waive the requirements of the section if exceptional circumstances exist, and specifies that exceptional circumstances include the failure of the claimant's most recent employer to post or maintain required notices. As the Commission noted in its earlier Order in this matter, while previous rules use language that implicitly created a requirement that the failure to post the notices be the cause in fact of a failure to report in person, amendments to the rule adopted in 1984 eliminated this requirement. 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 considered to be such that waiver of the in person reporting 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 in person reporting 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. (Hearing No. 87-604357, LIRC, October 30, 1987).


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