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

SHANNON L MANN, Employee

U W MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04611363MW


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 claimant worked for the employer beginning January 9, 2004 (week 2). She began a claim for benefits in week 16 of 2004.

The issue to be decided is whether the claimant is an "employee" of the employer for purposes of determining unemployment compensation benefit eligibility.

On November 19, 2003, the claimant received a contract from the employer to teach classes. The appointment dates were January 9 through May 23, 2004 (week 22). The claimant received a second contract as a theme painter showing the effective dates from January 26 through April 23, 2004.

It was the claimant's position that although she signed these contracts, the employer effectively laid her off on April 23. She was told that there was no class from March 21 until April 22 with respect to the teaching contract because students were in "production mode." The claimant argues that her supervisor informed her that her first contract, that was to end May 23, was "void" because of the second contract. The claimant's contracts were for two separate services, painting for a performance and teaching, so that it is logical that they would have two separate ending dates. Further the claimant specifically testified that while she did not teach classes after April 9, students were able to call her anytime. The claimant signed a contract that engaged her services until May 23 and she continued to be paid until May 23. Thus, the claimant was employed by the employer until May 23, 2004. This is consistent with the commission's decision in a similar case, Knudson v. University of Wisconsin - La Crosse, UI Dec. No. 92001194LX (May 29, 1992).

The commission therefore finds that the claimant earned wages in the amount of $425.74 for week 16 of 2004, $386.98 for week 17 of 2004, $154.42 for weeks 20 and 21 of 2004 and $122.06 for week 22 of 2004, performing services for the employer as an employee in an employment, within the meaning of Wis. Stat. § § 108.02(12), 108.02(13) and 108.02(26).

The commission further finds that the claimant was paid benefits for each of weeks 16 and 17 of 2004, and weeks 20 through 22 of 2004, amounting to a total of $736; for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the over payment did not result from the fault of the claimant as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant earned wages for services performed for the employer between weeks 16 and 22 of 2004. The claimant is required to repay the sum of $736 to the Unemployment Reserve Fund.

Dated and mailed June 22, 2005
mannsh . urr : 145 : 1   UW 977

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who found the claimant to be a generally credible witness. The commission reverses the ALJ because it concludes, based on the language of the contract, the method in which the claimant was paid, the fact that the claimant was engaged for a semester and she was available to her students throughout the semester, that the claimant did in fact perform services for the employer for wages until week 20 of 2004. The claimant may have misunderstood what she was told when her supervisor told her she no longer had to teach classes.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

 

cc: Kirstin A. Goetz


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