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

SHANNON E RYAN, Employee

AGENCY STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03202139WU


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 eligible for benefits, if otherwise qualified.

Dated and mailed September 9, 2004
ryansha . usd : 178 : 2   MC 605.091

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer disputes that the employee's wife called to give notice of the employee's absence on September 24, 2003. It refers to business records which support this contention. However, the employer failed to provide those records at the hearing. There is no non-hearsay evidence to support the employer's contention. However, the employee's wife credibly testified that she did call in. Based on this record, the ALJ correctly found that the employee was not absent without notice to the employer.

The employer further argues that the employee was at fault for his incarceration. In cases where the commission has found misconduct based on incarceration, it was able to affirmatively find that the employee's actions or failures to act caused a chain of events which created circumstances which made him unavailable for work and he was therefore the defaulting actor. Brian W. Schweikert v. Ganton Technologies Inc., UI Dec. Hearing no. 91606281 (LIRC Mar. 24, 1992); Love v. Emmpak Foods Inc, UI Dec. Hearing No. 99604845MW (LIRC Jan. 27, 2000).

In this case, the only evidence of the reason for the parole hold is the employee's testimony that he failed a lie detector test. No charges or convictions apparently resulted from this fact and the reliability and circumstances of the test were not established at the hearing. Based on the record available, the commission cannot conclude that the employee was responsible for the circumstances which made him unavailable for work.

cc: Attorney Ryan D. Lister


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uploaded 2004/09/13