LUTONYA KING, Employee

CROWN SERVICES, Employer

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:

The employee performed cleaning duties from November of 2003, for the employer, a temporary help provider. She last performed services for the employer in the week ending May 29, 2004 (week 22). After she failed to report for work from May 31 through June 4, 2004, the employer considered that she had quit by abandoning her job.

The department mailed the employer a UCB-23 on June 2, 2004. By June 4, 2004, the employer considered the employee to have quit. The employer timely returned the UCB-23 form to the department on June 10, 2004 indicating that the employee had earned total wages of $90.53 within that week, since the report specifically requested wages paid during the period beginning May 23, 2004 through May 29, 2004. The report also requested that the employer check any eligibility issue, and enumerated a series of boxes for various separation issues. The employer did not check any of these boxes.

Subsequently, in a letter dated July 9, 2004, the employer notified the department notice that the employee's last day of work was May 29, 2004, and that she was absent without notice from May 31, 2004 through June 4, 2004, and never returned to work. The employer asserted at that time that she had quit. The department issued an initial determination on August 3, 2004 finding that the employee had quit and assessing an overpayment of $723.00 for weeks 23 through 26 and week 28 of 2004.

The issue to be resolved is whether benefits were erroneously paid because the employer failed to file a report required, or failed to provide correct and complete information on the report, and if so, whether it was due to the employer's fault.

Wis. Stat. § 108.04(13)(f) provides in relevant part:

If benefits are erroneously paid because the employer fails to file a report required by this chapter, fails to provide correct and complete information on the report, fails to object to the benefit claim under s. 108.09 (1) or aids and abets the claimant in an act of concealment as provided in sub. (11), the employer is at fault. [emphasis added]

The UCB-23 form that the employer received expressly asks questions about the week of issue in the first three sections. However, it then makes a general inquiry into any other eligibility issues. It is not ambiguous on its face. Despite the fact that the employer had determined that the employee quit before it completed the form, it withheld that information from the department when it failed to note that the employee quit. Since the employee did not report the quit and she earned no further wages from this employer, no further forms were sent to this employer. The opportunity for the employer to raise the quit issue was on the UCB-23 and it failed to do so.

The department argues that the employer is at fault for the overpayment of benefits because it failed to completely respond to the departmental form. The commission agrees. The department counts on employers to alert it to issues that claimants fail to disclose. The employer waited more than a month to notify the department that it disputed the employee's eligibility.

The employer omitted necessary information and is responsible for the $732 overpaid to the employee. Those benefits will remain charged to its account.

The commission therefore finds that the employer failed to file a required report in a timely manner, within the meaning of Wis. Stat. § 108.04(13), and that as a result, benefits were improperly paid to the employee from the account of another employer.

The decision of the administrative law judge is reversed. Accordingly, benefits paid to the employee in error as a result of the employer's failure will be charged to the employer's account.

Dated and mailed May 27, 2005
kinglut . urr : 178 : 1 BR 319.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not consult with the ALJ regarding witness credibility. The commission reverses as a matter of law.

cc:
Crown Services Of Wisconsin (Milwaukee, Wisconsin)
Gregory Frigo
Simon Compensation Services Co.

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uploaded 2005/05/31