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

BARBARA A DI SALVO, Employee

AAA WISCONSIN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03008367MD


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 worked 39 years, most recently as a human resource specialist, for the employer, an automotive club. Her last day of work was July 31, 2003 (week 31), when the employer eliminated her position.

The employee spoke with her supervisor about her position elimination and the fact that she would receive one week of severance pay for each year of service. Together, they understood that she was precluded from filing for unemployment insurance benefits until the 39 weeks elapsed. She consequently did not file a claim for unemployment insurance benefits when she became unemployed.

On November 13, 2003 (week 46), the employee's supervisor telephoned her and informed her that she did not have to wait the 39 weeks before applying for unemployment insurance benefits. She immediately initiated a claim for unemployment benefits. At that time, she filed back claims for benefits for the calendar weeks ending August 9 through November 8, 2003 (weeks 32-45).

Wis. Stat. § 108.08(1) provides that in order to receive unemployment insurance benefits for a particular week of unemployment, the claimant should give notice to the department within such time and in such manner as department rules prescribe. Wis. Admin. Code. § DWD 129.01(1) provides that a claimant must notify the department of the claimant's intent to file a claim for unemployment benefits within seven days of the close of the week benefits are first sought. Wis. Admin. Code. § DWD 129.01(4) provides that this requirement may only be waived if exceptional circumstances exist.

The issue to be decided is whether the employee's failure to timely notify the department of her unemployment was due to an exceptional circumstance requiring waiver of the reporting requirement.

Wis. Admin. Code § DWD 129.01(4) provides that the department shall waive the reporting requirements if there is "any action by an employer, in any manner, directly or indirectly, instructing, warning or persuading the claimant not to file a benefit claim." Because this code provision is remedial in nature, the commission construes it liberally. Fredenberg v. Goodyear Tire and Rubber Co., UI Dec. Hearing No. 00005111MD (LIRC August 17, 2001).

While the commission agrees with the administrative law judge that the employer did not explicitly deter or discourage her from filing, the supervisor did have a role in her decision not to file. The uncontested testimony from the employee is that she and her supervisor discussed the matter and it was decided that she would not be eligible for the first 39 weeks of her unemployment. His misunderstanding and expression of it to her confirmed her mistaken understanding and, thus, was an "action" persuading her not to file a benefit claim. Finally, the commission finds that the fact the employer had a poster about claiming unemployment benefits does not disqualify her from Wis. Admin. Code § DWD 129.01(4).

The commission therefore finds that in weeks 32 through 45 of 2003, the employee's failure to notify the department of her intention to initiate a benefit claim was due to exceptional circumstances requiring waiver of the notice requirement, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code § DWD 129.01.

DECISION

The appeal tribunal decision is reversed in part and affirmed in part. Accordingly, the employee is eligible for benefits in weeks 32 through 45 of 2003, if otherwise qualified.

Dated and mailed April 7, 2004
disalba . urr : 150 : 1   CP 360

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge prior to reversing the appeal tribunal decision. The reversal is not based on any differing credibility impressions but instead is based on a differing interpretation of the administrative code provisions.


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uploaded 2004/04/12