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

SAMUEL N STEVENSON, Employee

ALSUM PRODUCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000181MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. Pursuant to authority granted in Wis. Stat. § 108.09(6)(c), the commission may on its own motion set aside such decision upon grounds of mistake. The commission sets aside the appeal tribunal decision dated February 9, 2005 and substitutes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The employee worked for about seven months packaging potatoes for the employer, a produce wholesaler. His last day of work was December 10, 2004 (week 50).

The employee was a state prisoner originally from Madison who was serving his sentence at the Fox Lake Correctional Institution under the authority of the State Department of Corrections. He was granted work release privileges. While in that program, he worked for the employer, a private employer who accepts prison workers. After completing his sentence, the Department of Corrections transferred him to Madison where he was paroled. The employee gave notice to the employer that he was leaving because he was being released. His last day of work was the Friday before he left prison. The employee has sought permission to live in other cities, but this has been denied by the Department of Corrections.

The issue to be decided is whether the employee's separation from employment falls within any exception permitting the immediate payment of benefits.

Prisoners whose jobs end solely due to the conditions of their releases from prison do not voluntarily quit their employment. The commission finds that such separations are not directly caused by either the employer or the employee but by the Department of Corrections. Hopkins v. Packerland Packing Company Inc., UI Dec. Hearing No.97600010EC (LIRC Mar. 27, 1997) and Mattes v. LSJ Sportswear, Inc., UI Dec. Hearing No.97600010EC (LIRC Jan. 26, 1995).

The employee's employment ended when he became unavailable for work otherwise available with the employer due to a transfer of his supervision by the Department of Corrections. The employee did not have the option of remaining in the Fox Lake area under the terms of his release.

The next issue to be determined is whether the employee was otherwise able and available for work following his separation. The employee's transfer to Madison was for the purposes of living and seeking work. There is no evidence that he was physically unable to work or unavailable for work.

The employer's account will not be charged for the employee's benefits pursuant to Wis. Stat. § 108.07(8). This provision provides that benefits are chargeable to the balancing account instead of the employer's account if a prisoner's employment with a private employer is ended because the conditions of incarceration make it impossible to continue. This provision recognizes that in such instances, the termination of the employment relationship is not truly attributable to either party and the employer should not therefore bear the cost of the employee's benefits.

The commission therefore finds that in week 50 of 2004, the employee's employment was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1, but that the employee was able to work and available for work on the general labor market, within the meaning of said section.

DECISION

The decision of the administrative law judge is set aside, is modified according to the foregoing findings of Fact and Conclusions of Law, and, as modified, is reversed. Accordingly, the employee is eligible for benefits beginning in week 50 of 2004, if he is otherwise qualified. Pursuant to Wis. Stat. § 108.07(8), benefits otherwise chargeable to the employer, as an employer subject to the contribution requirements of the law, shall be charged to the fund's balancing account.

Dated and mailed May 27, 2005
stevesa . urr : 178 : 1   VL 1016 AA 245

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission did not discuss witness credibility but reverses as a matter of law. The ALJ found that the employee voluntarily quit. The commission's decision reflects its prior decisions finding employees who are transferred by the Department of Corrections, and therefore are unable to continue their employment, to be eligible if they are otherwise able and available for work.

However, to avoid injustice to the employer in such circumstances, those benefits are charged to the balancing account under Wis. Stat. § 108.07(8). This section provides in relevant part: "If a claimant is a prisoner of a state prison, as defined in s. 302.01, and has employment with an employer other than the department of correction or a private business leasing space within a state prison under s. 303.01(2)(em), and the claimant's employment terminates because conditions of incarceration or supervision make it impossible to continue the employment, the department shall charge to the fund's balancing account any benefits based on the terminated employment that are otherwise chargeable to the account of an employer that is subject to the contribution requirements under ss. 108.17 and 108.18." Consequently, the employee is eligible for benefits and the employer is not charged for them.


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