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

JOHN P MCCARTHY, Employee

AIMS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03609129MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is required to repay the sum of $2,314.00 to the Unemployment Reserve Fund.

Dated and mailed July 8, 2004
mccarjo . usd : 132 : 8     UW 975

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the appeal tribunal decision that found he was overpaid benefits in the amount of $2,314.00 that must be repaid to the department. The employee was not eligible for benefits in weeks 37 through 49 of 2001, because he was working 40 hours or more in each of those weeks. Wis. Stat. § 108.05(3)(c), provides that "a claimant is ineligible to receive any benefits for a week in which the claimant works a total of 40 or more hours for one or more employing units." There is no exception for an individual who is paid solely by commission, or who does not earn any wages in the week in which the 40 hours of work is performed.



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uploaded 2004/07/12