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

NANCY E KALCIK, Employee

HARMONY LIVING CENTERS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04401647AP


On April 6, 2004, the Department of Workforce Development issued an initial determination which held that the claimant was not available for work because she was restricted to less than 50 percent of the suitable full-time jobs in her labor market. The employee filed a timely request for hearing on the adverse determination, and hearing was held on May 24, 2004 in Appleton, Wisconsin before a department administrative law judge. On May 24, 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, by December 7, 2004 order, the commission remanded the matter for additional hearing. That hearing took place on March 21, 2005; the matter is again before the commission and 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 approximately nine months as a resident assistant for the employer, a business that operates an assisted living facility. Her last day of work for the employer was February 9, 2004. The issue in the case is whether the employee was available for work beginning in week 15 of 2004, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.01(2)(a), notwithstanding her part-time technical college attendance. The commission concludes that she was, and so reverses the appeal tribunal decision.

During the week beginning April 4, 2004 (week 15), the employee was enrolled as a part-time student in a technical college program for certification as a nursing assistant. Her course schedule included classes from 6:00 p.m. until 9:00 p.m. each Monday and from 8:00 a.m. until 1:00 p.m. on Tuesday and Friday of each week. The employee was willing to drop her classes if offered full-time employment paying wages of at least $7.00 per hour. She had no other restrictions on her availability for suitable full-time employment opportunities.

The employee's labor market area consists of all or parts of Manitowoc and Kewaunee counties. Based on her education, training, and past work experience, and considering her unavailability for work during the times she was scheduled to attend class, the employee would be available only for 21 percent of all the suitable jobs in her labor market area. Considering her willingness to drop her classes if offered employment paying wages of at least $7.00 per hour, however, the employee was available for approximately 72 percent of all the suitable jobs existing in her locality.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statutes and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

The expert testimony received at the hearing established that the employee's unavailability for work during the hours of her scheduled classes would limit her to 21 percent of all the suitable work in her vicinity. The employee credibly testified, however, that she would be willing to discontinue her schooling if she were offered full-time employment paying wages of at least $7.00 per hour. Given that restriction on the wages she was willing to accept in order to discontinue her schooling, she was available for approximately 72 percent of the suitable jobs in her labor market area. Because the employee thus was available for more than the requisite 50 percent of the suitable jobs in her locality, for unemployment insurance eligibility purposes she was available for work.

The commission therefore finds that, beginning in week 15 of 2004, the employee was able to work and available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.01(2).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 15 of 2004.

Dated and mailed June 9, 2005
kalcina : 105 : 8   AA 205

/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 commission's reversal was based in significant part upon testimony received at the remand hearing, evidence obviously not available to the administrative law judge when he issued his decision. The administrative law judge based his decision upon the employee's testimony that the minimum wage she would accept to quit her classes "would probably be $8.25" per hour. The employee's own actions belied this restriction, however. Her previous employment began at $7.25 per hour. In addition, other work she was applying for during the time period in question, paid between $6.75 and $7.00 per hour. In actual fact, therefore, the employee's wage restriction cannot be said to have been $8.25 per hour.



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