In the matter of the
unemployment benefit claim of

DONALD L KNUDSON, Employee

Involving the account of

UNIVERSITY OF WISCONSIN - LA CROSSE, Employer

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

The decision of the Appeal Tribunal is affirmed. Accordingly, in weeks 21 and 22 of 1991, the employe is ineligible for a weekly benefit payment as set forth in the Appeal Tribunal Decision. He is required to repay the sum of $450.00 to the Unemployment Reserve Fund.

Dated and mailed May 22, 1992
132 - CD1028  UW 977

/s/ Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The employe has petitioned for Commission review of the adverse Appeal Tribunal Decision which found that he had earned wages in weeks 21 and 22 of 1991. The employe maintains in his petition that he did not perform work during weeks 21 and 22 of 1991 and, therefore, did not "earn" wages in those weeks.

Section 108.05 (3)(a) of the Statutes provides for reduction in benefit payments if the employe earns wages in a given week. Section 108.02 (26) of the Statutes defines wages to include every form of remuneration payable for a given period. The employe's contract with the employer began on August 29, 1990, and ended on May 29, 1991. He received an academic year base salary of $31,693.00 for 1990 and, beginning January 1, 1991, an increased base salary of $32,188.00. That salary was payable for the period of August 29, 1990 through May 29, 1991. Accordingly, pursuant to section 108.02 (26) of the Statutes, he earned wages in weeks 21 and 22 of 1991, the calendar weeks ending May 25 and June 1, respectively.

While the employe maintained that he performed no services during weeks 21 and 22 of 1991, under his contract the employer had a right to his services until May 29, 1991. Indeed, the employer's Faculty and Academic Staff Handbook provided that when classes, examinations or registrations were not being conducted, the faculty and academic staff were expected to pursue individual self-directed activities. The dates of such activities could vary from week to week, month to month and term to term during the course of an academic year. However, what is significant is that the employer had the right to request the employe's services until the end of his contract term.

The employe further states in his petition that he believes he has been subject to a "kick-in-the-teeth" because he followed Department instructions to report his actual last day of work and, as a result, must repay an overpayment. The employe's diligence in seeking information and following instructions was commendable, which makes this situation extremely unfortunate. However, the Statutes require that the employe's benefit rate be reduced by wages earned. However unfair this may seem to the employe the Commission cannot simply waive recovery of the overpayment. Topp v. LIRC, 133 Wis. 2d 422, 428 (1986). The employe states he was unaware of the proration scheme used by the employer in assigning income to each day of the week. However, for unemployment compensation purposes the Department is only concerned with the fact that such proration method was utilized by the employer.

Finally, the employe believes it is unfair that the same standard is not used for teachers as is applied to other workers. However, it is not the profession which dictates whether the employe earned wages in weeks 21 and 22 of 1991, but the fact that he had a contract covering such period. The employe is not being singled out because he is in the teaching profession but because he is under an employment contract. In other instances, workers in other occupations who also work under employment contracts would also be deemed to be earning wages over the entire contract period.

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