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

BARBARA L BERNHARDT, Employee

WALGREEN CO ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03007269MD


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 reopened a claim for unemployment insurance benefits in the week ending September 6, 2003 (week 36), after being laid off from an assignment with a temporary service at a Watertown, Wisconsin box factory. She resides in Watertown and is unwilling to travel outside the city for work. She does not drive and relies on walking, public transit, rides and taxis to get to and from work. In the past few years, she has only worked in Watertown. She has 27 years of work experience in various positions. She has worked as a waitress, bartender, dishwasher, assembler, post office laborer, office worker and cashier. As of the date of her hearing, approximately two months after she reopened her claim, she was working full-time as a cook for a Watertown restaurant.

The employee conceded at hearing that many people from Watertown do commute outside of the city limits for work. Further, a certified expert report on labor market conditions reflects that workers in the Watertown labor market customarily travel 11.52 miles one way for work.

Wis. Stat. § 108.04(2)(a) provides that a worker must be able and available for work in a week of total unemployment in order to be eligible for unemployment insurance benefits.

The issue to be decided is whether the employee was able and available for work as of week 39 of 2003.

Wis. Admin. Code § DWD 128 provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, or if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market.

The commission agrees with the administrative law judge that the employee is unwilling to work outside of Watertown and that this controllable restriction limits her to less than 50 percent of her suitable work in her labor market. However, the administrative code contains a "good cause" provision for failing to meet the 50 percent availability requirement. In Sanders v. Birchwood Court, UI Dec. Hearing No. 96005788MD (LIRC March 26, 1997), the commission found good cause for controllable childcare restrictions resulting in less than 50% availability, citing the fact that the claimant's base period employment was based upon the same restrictions, the claimant demonstrated a significant attachment to the labor market and was already re-employed as of the hearing date. Similarly, in this case, the employee's base period employment consists of Watertown work, she is significantly attached to her labor market, as evidenced by her lengthy work history and job search efforts, and she was already re-employed with another Watertown business as of the hearing date. Thus, the commission finds her controllable restriction is with "good cause."

The commission therefore finds that as of week 39 of 2003, the employee's restriction limiting her to less than 50 percent of the suitable work, was with good cause and she is eligible for unemployment insurance benefits within the meaning of Wis. Stat. § 108.04(2)(a) and Chapter DWD 128 of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is reversed. Accordingly the employee is eligible for benefits beginning in week 39 of 2003, provided she is otherwise qualified.

Dated and mailed April 2, 2004
bernhba . urr : 150 : 1   AA 220

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission reverses the ALJ's decision because it has reached a different legal conclusion when applying the law to the facts found by the ALJ.


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uploaded 2004/04/05