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

JACALYN R BALCIUNAS, Employee

K MART CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04603600WK


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 has worked for four years as a front-end supervisor and service desk worker for the employer, a retail business. In May, 2003, the employee had a baby and took a leave from work. When she returned to work at the end of June 2003, she was only willing to work one day per week due to childcare concerns. On April 1, 2004 (week 14), the employee expanded her availability to three shifts per week for the employer, averaging 12 to 15 hours per week.

Departmental records reflect that the employee filed for and received partial unemployment benefits in weeks 10 through 14 of 2004. She was paid benefits in week 10 of 2004 prior to the initial determination dealing with the issue of the employee's ability to work and availability for work. Thereafter, she received benefits totaling $303.00, for weeks 11 through 14 of 2004.

Wis. Stat. § 108.04(2) provides that a totally unemployed claimant is eligible for unemployment insurance benefits in any given week only if he or she is able and available for work. With respect to claimants who are partially employed, Wisconsin Administrative Code § DWD 128.01(5) provides, with emphasis added, as follows:

The department may require a claimant who is partially unemployed to comply with the requirements of this chapter if there is some definite indication that the claimant is not genuinely interested in working full time, or if the claimant is incarcerated and is not permitted to look for work on the general labor market.

The issue to be decided is whether the employee is able and available for work.

The record clearly establishes that the employee was not interested in full-time work as of week 10. She was only willing to work one day a week as of that time and was only willing to work up to three shifts per week as of week 14. Thus, even though the employee was partially employed as of week 10, she must be able and available in order to be eligible for benefits.

Wisconsin Administrative Code § DWD 128.01(2)(a) provides that a worker, who restricts himself or herself without good cause to less than 50% of the suitable full-time opportunities for work in the labor market, is not able and available for work. The notes accompanying this code provision provide, in relevant part:

. . . A claimant obligated to care for minor children is expected to make arrangements which would permit the claimant to accept suitable work. Unwillingness or failure to make such arrangements are controllable restrictions and, normally, without good cause.

Given these notes and the limited evidence from the record, the employee's restriction is not with good cause and she is not entitled to the partial unemployment benefits she began receiving in week 10.

The next issue to be decided is whether the employee must repay the unemployment insurance benefits she received.

Wis. Admin. Code § § DWD 128.01(1) and (3) provide that a claimant may not be disqualified for any week for which a benefit check has been mailed prior to the date of an initial determination resolving an eligibility issue under the able and available section, unless the claimant knowingly made a false statement or misrepresented or concealed information relating to his or her ability to work and availability to work. Since the benefit check for week 10 was mailed to the employee before the initial determination was issued and there is no evidence of fraud, misrepresentation or concealment in the record, the employee may not be disqualified for benefits in that week.

The unemployment insurance benefits for weeks 11 through 14 were paid after the initial determination, so the above provision does not apply. Instead, for those weeks, the repayment of the overpayment will only be waived if the overpayment was caused by departmental error and without claimant fault. Wis. Stat. § § 108.22(8)(a) and (c).

The overpayment in weeks 11 through 14 of 2004, resulted from the commission's reversal of the appeal tribunal decision. This is not departmental error and, therefore, repayment of the overpayment cannot be waived.

The commission therefore finds that beginning in week 10 of 2004, the employee was not able to work or available for suitable work within the meaning of Wis. Stat. § 108.04(2)(a) and Chapter DWD 128 of the Wisconsin Administrative Code. The commission further finds that the employee is not disqualified for benefits in week 10 of 2004, because the benefit check was mailed prior to the initial determination and there is no evidence of false statement, misrepresentation or concealment with the meaning of Wis. Admin. Code § § DWD 128.01(1) and (3). The commission finally finds that the employee was paid benefits in the amount of $303.00, for which the employee was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1) and that the entire amount must be repaid to the department because the overpayment was not due to department error, within the meaning of Wis. Stat. § § 108.22(8)(a) and (c).

DECISION

The appeal tribunal decision is modified to conform to the above findings and, as modified, is affirmed in part and reversed in part. Accordingly, the employee is ineligible for unemployment insurance benefits beginning in week 10 of 2004 and until she is again able and available for suitable work. The employee is required to repay the sum of $303.00 to the Unemployment Reserve Fund.

Dated and mailed August 31, 2004
balcija . urr : 150 : 1   AA 220

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge prior to reversing because the reversal is not based on a differing view as to witness credibility. Instead, the reversal was based upon a different interpretation of Wis. Admin. Code § DWD 128.01(5).

 

OVERPAYMENT NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.C. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

 

cc: K-Mart Corporation (Troy, Michigan)


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