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

WILLIAM J HOUTERMAN JR, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04002974MD


On May 21, 2004, the Department of Workforce Development issued an initial determination which held that the claimant's failure to call the telephone initial claims system prior to May 10, 2004 was not due to an exceptional circumstance. The claimant filed a timely request for hearing on the adverse determination, and hearing was held on June 23, 2004 in Madison, Wisconsin before a department administrative law judge. On June 28, 2004, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The claimant filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The claimant worked more than 20 years as a department manager for the employer, a printing concern. The employer terminated the claimant's employment in week 9 of 2004, but the claimant did not file a claim for unemployment insurance until May 10, 2004 (week 20). The issue is whether the claimant's claim should be "backdated" to begin with week 10 of 2004; the commission concludes that it should, and so reverses the appeal tribunal decision.

On the claimant's last day of work, after he had been told he was being terminated, he met with the employer's Human Resources Manager. He asked her if "UI" would be a benefit for him upon leaving the company. She told him that it would not, that normally one who receives severance pay does not get unemployment insurance. The claimant also delayed filing his claim because he thought others who had received severance pay had not been eligible for unemployment insurance as a result.

Wisconsin Admin. Code § DWD 129.01(4) lists the exceptional circumstances pursuant to which one may backdate his or her unemployment insurance claim. The relevant circumstance in this case is (4)(b): "action by an employer, in any manner, directly or indirectly, instructing, warning, or persuading the claimant not to file a benefit claim." As is evident, this provision is extremely broad. It essentially allows a claimant to backdate his or her claim if an employer in any even indirect manner persuades a claimant not to file a benefit claim.

The manager's statement to the claimant meets the above definition of exceptional circumstances. Specifically, it constituted indirect persuasion not to file a benefit claim. In addition, the manager's statement is not necessarily correct. While it can be the case that one receiving severance pay is ineligible for unemployment insurance, it is not always the case. Even if the statement were completely correct, however, it is for the Department of Workforce Development and the commission, and not for the employer, to determine whether one's receipt of severance pay precludes him or her from eligibility for unemployment insurance.

The commission therefore finds that, for weeks 10 through 19 of 2004, the claimant failed to notify the department of his intention to initiate or reactivate his benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129, but that the reason for the failure constitutes an exceptional circumstance so as to permit waiver of the timely notification requirement.

DECISION

The appeal tribunal decision is reversed. Accordingly, the claimant is eligible for unemployment insurance beginning in week 10 of 2004, if he is otherwise qualified.

Dated and mailed October 20, 2004
houtewi . urr : 105 : 8  CP 360

/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 before determining to reverse the appeal tribunal decision. The administrative law judge reasoned that the employer's manager did not threaten the employee or convince the employee not to apply for unemployment insurance. This is too narrow a reading of the express definition of exceptional circumstances in the Wisconsin Administrative Code, however. The commission therefore has reversed the appeal tribunal decision as a matter of law.


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uploaded 2004/11/03