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

KORRY L ARDELL, Employee

WISCONSIN POWER & LIGHT CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04402626SH


On June 26, 2004, the department issued an initial determination which held that the employee lost his employment due to suspension of a license he was required by law to have to perform his customary work for his employer. The employee filed a timely request for hearing on the adverse determination, and hearing was held on November 8, 2004 in Sheboygan, Wisconsin before a department administrative law judge. On November 12, 2004, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employee 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 employee worked just over 2 1/2 years as an equipment operator for the employer, an energy business. His employment ended on June 4, 2004 (week 23), because of his inability to obtain a driver's license required by the employer for his position as an equipment operator. The issue is whether the employee is ineligible for unemployment insurance under Wis. Stat. § 108.04(1)(f), the license suspension statute. The commission concludes that he is not, and so reverses the appeal tribunal decision.

The employee's job classification with the employer was "equipment operator." The employee's primary duties involved operating a boiler inside the employer's plant, and he occasionally operated a forklift or floor sweeper. In the entirety of his employment, the record indicates that he drove a motor vehicle on only a few occasions, once off site (when he had a valid driver's license) and on a few occasions within the work site in order to retrieve oil (for unspecified purposes). Although the employee's job description required him to have a valid driver's license, the employer's operations manager conceded that individuals in the employee's job category do not drive very often.

The employee lost his driver's license because he received so many speeding tickets that he was deemed a habitual offender. This meant he would be unable to obtain a regular driver's license for approximately five years (from March of 2004) and occupational license for approximately two years. Once the employer became aware that the employee no longer had a valid driver's license, the employee was given 60 days in order obtain either a regular or an occupational license. The employer discharged him on June 4, 2004, upon the employee's inability to obtain either.

By operation of Wis. Stat. § 108.04(1)(f), an employee is ineligible for unemployment insurance if the "employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault . . . ." There is no question but that the employee lost his license due to his own fault. The statute requires as well, however, that the license be required by law for the employee "to perform his or her customary work" for the employer, and that condition is not met in the present case. "Customary" is "commonly practiced" or "usual," and the evidence falls far short of establishing that the employee needed a driver's license to perform his customary work for the employer: internal, boiler operation. To the contrary, the record indicates that it was uncommon or unusual for the employee to engage in any work duties that required a valid driver's license.

The commission therefore finds that, in week 23 of 2004, the employee's employment was terminated by the employer due to suspension of the employee's driver's license due to the employee's own fault, but that the license was not required by law in order for the employee to perform his customary work for the employer, within the meaning of Wis. Stat. § 108.04(1)(f).

DECISION

The appeal tribunal decision is reversed in part and affirmed in part. Accordingly, the employee is eligible for unemployment insurance beginning in week 23 of 2004, if otherwise qualified.

Dated and mailed February 18, 2005
ardelko . urr : 105 : 2  AA 130

/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 in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. The facts in the case are undisputed. Rather, the commission has concluded as a matter of law that a valid driver's license was not necessary for the employee to perform his customary work for the employer, within the meaning of Wis. Stat. § 108.04(1)(f).

cc:
Tony Bartels
Alliant Energy Legal Department
Edgewater Energy Center


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uploaded 2005/02/28