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

BRIAN R KREUZIGER, Employee

JOURNAL SENTINEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608709MW


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 initiated a benefit claim in week 24 of 2004. When the employee filed his claim for benefits he was advised of the requirements of making a search for work. The employee conceded being aware of this requirement, but admitted not making any contacts during weeks 35 and 36 of 2004. The employee indicated that he was too busy and depressed to look for work in those weeks.

The issue to be decided is whether the employee made a reasonable search for suitable work in weeks 35 and 36 of 2004 and, if not, whether the work search requirement may be waived.

The employee admitted that he performed no work search during the weeks in question, but asserted that his work search requirement was waived because his most recent employer failed to post a UI poster.

The administrative rules do provide for a waiver of the work search requirements under certain circumstances, including the following:

DWD 127.03 Mandatory waiver of work search requirements. The department shall waive a claimant's search for suitable work requirement under s. DWD 127.01 for any week under any of the following circumstances:

*   *   *

(4) The failure of the claimant's most recent employer to post or maintain any notice as to claiming unemployment benefits which has been supplied to the employer under s. DWD 120.01.

The above-cited rule clearly and unambiguously states that waiver of the work search requirement is mandatory where the most recent employer has no UI poster. The employee testified that the employer in this case, his most recent employer, had no UI poster. The employee raised the poster issue prior to the hearing, and the employer received notice of the hearing. However, the employer did not appear at the hearing to present any evidence demonstrating that it posted a required notice, and the employee's testimony about the absence of a poster went unrebutted. Although the employee was aware that he was required to make a work search, and admitted that he failed to look for work for reasons unrelated to the lack of a poster, the rule does not require the employee to demonstrate any causal connection between the absence of a poster and the failure to search for work.

The commission therefore finds that the employee did not make a work search in weeks 35 and 36 of 2004, within the meaning of Wis. Stat. § 108.04(2)(a)3. and Wis. Admin. Code § DWD 127.01, but that the requirement he conduct a work search in those weeks was waived due to the lack of a poster, within the meaning of Wis. Admin. Code § DWD 127.03(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in weeks 35 and 36 of 2004, if he is otherwise qualified.

Dated and mailed January 28, 2005
kreuziger . doc : 164 : 2  CP 350 AA 230.01

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The appeal tribunal held that Wis. Stat. § DWD 127.03 must be read in conjunction with Wis. Admin. Code § DWD 129.01(4), which provides for a waiver of the notification requirements for initiating a benefit claim, if the error occurred because the claimant was not aware of the duty to comply and the claimant's most recent employer failed to post or maintain any notice as to claiming benefits. The administrative law judge reasoned that the purpose of Wis. Stat. § DWD 127.03, at issue here, is to prevent the department from waiving the notification requirement, then denying a claimant benefits because he fails to make a work search, and that any other reading would gut the work search requirement for anyone fortunate enough to have an employer that failed to have a notice poster. However, while the commission agrees with the administrative law judge that a rule which requires waiver of the work search requirement whenever there is no poster leaves room for manipulation of the benefit claiming requirements,(1)   it cannot ignore the plain language of the rule, which clearly states that waiver of the work search requirement is mandatory where the most recent employer has no UI notice poster. The fact that Wis. Admin. Code § DWD 129.01(4) includes a specific requirement that the failure occur because the claimant was unaware of a duty to provide notice serves to demonstrate that, if the department intended to require the employee to show a causal link between the lack of a poster and his failure to look for work, it could and would have included wording to that effect.

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is as a matter of law.

cc: Journal/Sentinel, Inc. (Glendale, Wisconsin)



 

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Footnotes:

(1)( Back ) It should be noted that the claimant in this case does not profit from his attempt to manipulate the benefit claiming system, since he is disqualified from receiving benefits by virtue of a separate decision, hearing #04606941MW, which holds that, as of week 27 of 2004, he was not able to work and available for work.

 


uploaded 2005/02/02