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

ANDRE D THOMPSON, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04606351MW


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 considered the petition and the positions of the parties, it has reviewed the evidence submitted to the ALJ and, following consultation with the ALJ, by February 2, 2005 order, the commission remanded the matter for additional hearing. That hearing took place on June 14, 2005, with only the employer appearing. The matter was then returned to the commission for disposition. Based upon the commission's review of the record of the original hearing as well as the remand hearing, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee most recently worked as a helper/manufacturer for the employer, a staffing business. The work began on March 5, 2004 (week 10), paid $9.00 an hour and was Monday through Friday with a 7 a.m. start time. Prior to this work, the employee worked a one-day assignment in January 2004 for the employer.

The employee last worked on Monday, March 15, 2004 (week 12) and then was absent from work without notice Tuesday through Friday, March 16 through 19, 2004 (week 12). The employer attempted to contact the employee but his telephone had been disconnected. The employee understood that he was expected to contact the employer if unable to work and that three absences without notice would be treated by the employer as a quitting.

On Monday, March 22, 2004 (week 13), the employee telephoned the employer and was informed that his "file" was closed and the employer would not be placing him on assignment. Additionally, since the employee had not provided at least one-week notice of termination of employment, the employee's last paycheck for the one work day of March 15, 2005 would be paid at minimum wage pursuant to an agreement the employee signed upon hire.

In the employee's labor market, work similar to that which he performed for the employer has a pay range of $5.15 to $12.72 an hour with a rate of pay of less than $5.80 an hour being substantially less favorable than the prevailing rates of pay for similar types of work.

Department records reflect that the employee filed for and received benefits totaling $4,168.00, a $3.00 Temporary Extended Unemployment Compensation (TEUC) payment for the calendar week ending March 20, 2004 (week 12) and $4,165.00 in regular unemployment insurance benefits for the calendar weeks ending May 8 through October 30, 2004 (weeks 19 - 44).

The issue to be decided is whether the employee quit or was discharged and his eligibility for benefits based upon the nature of the separation.

The employee contended that he did not voluntarily terminate his employment but that the employer discharged him. To support his position, the employee contended that he telephoned the employer around 9:30 a.m. on Friday, March 19, 2004 and explained that he had been absent because he had been detained by police for questioning for three days. He testified that he was detained because he was riding in a friend's vehicle and, unbeknownst to the employee, the friend had drugs and drug paraphernalia in the vehicle. The employee was not charged and was released at approximately midnight on Thursday, March 18, 2004. He did not attempt to contact the employer sooner to notify it of his detention because he was only allowed to make collect telephone calls. He further argued that although he tried to call other people to contact the employer for him, every telephone number he knew had a "block." He did not attempt to contact the employer collect.

The commission does not credit the employee's assertion that he contacted the employer on Friday, March 19, 2004. Instead, it credits the employer's evidence that the employee first contacted it on Monday, March 22, 2004 (week 13).

An employee may be found to have voluntarily terminated his or her employment without saying "I quit" and a voluntary termination may include a situation in which an employer actually discharges a worker; specifically, a worker may demonstrate an intent to quit and actually quit by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980).

In this case, the employee's absence from work after Monday, March 15, 2004 and failure to contact the employer until Monday, March 22, 2004, was so inconsistent with a continuing employment relationship as to establish a quitting.

Wis. Stat. § 108.04(7)(a) provides that unless a worker's quitting falls within a listed exception, a worker who terminates his or her employment is ineligible for unemployment insurance benefits for a period of four weeks after the quitting and until the worker has earned four times his or her weekly benefit rate which would have applied had the quitting not occurred.

Wis. Stat. § § 108.04(7)(e) and 108.04(9) allows benefits to a worker who quits employment within the first ten weeks, if the wages, hours or other conditions of employment are substantially less favorable to the employee than those prevailing for similar types of work in the labor market. While the employee's quitting was within the first ten weeks, the commission finds that the wages, hours or other conditions were not substantially less favorable to him than similar types of work. Although his last day of work was paid at minimum wage, the commission declines to use this agreed upon rate in its determination of substantially less favorable. Instead, the commission uses the employee's original rate of pay, $9.00 an hour, for this determination. The employee failed to establish that his quitting fell within any other exception allowing for immediate payment of benefits.

Because the employee's quitting was not within any exception, he was not eligible for the $4,168.00 in benefits paid to him and the commission must next determine whether the erroneously received benefits that must be repaid.

Of the $4,168.00 paid to the employee, $3.00 was in the form of TEUC payment, a federal program found at Public Law 107-147. § 206 (b) of P.L. 107-147, provides for waiver of repayment of a TEUC overpayment if the overpayment was without fault of the claimant and repayment is contrary to equity and good conscience. Three factors assist in determining whether repayment is contrary to equity and good conscience; they are: (1) whether the overpayment was the result of a decision on appeal, (2) whether the agency gave notice to the individual that the individual might be required to repay benefits in the event of a reversal on appeal, and (3) whether recovery would cause financial hardship to the individual. No evidence was adduced at hearing which would lead the commission to find that recovery of the $3.00 TEUC payment is contrary to equity and good conscience.

As for the remaining $4,165.00 in unemployment insurance benefits that were erroneously paid, if the employer is not at fault in the erroneous payment, repayment is waived if the overpayment was due to department error and without fault on behalf of the claimant. See Wis. Stat. § § 108.04(13)(c) and 108.22(8)(c). Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied. More importantly, Wis. Stat. § 108.22(8)(c)(2) provides that a reversal by an appeal tribunal, the commission or any court shall not be treated as establishing department error. In this case, there is no evidence of either employer or employee fault and the overpayment was created by the commission's reversal of the appeal tribunal decision.

The commission therefore finds:

(1) that in week 12 of 2004, the employee was not discharged within the meaning of Wis. Stat. § 108.04(5) but voluntarily terminated his employment and his quitting was not within any exceptions to allow for the immediate payment of unemployment insurance benefits within the meaning of Wis. Stat. § 108.04(7)(a),

(2) that in week 12 of 2004, the employee was paid TEUC benefits of $3.00 for which he was not eligible and which he must repay, within the meaning of § 206(b) of P.L. 107-147, and

(3) that the employee must repay $4,165.00 in overpaid unemployment insurance benefits as waiver is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is modified to conform with the above findings and, as modified, is reversed. The employee is ineligible for unemployment insurance benefits as of week 12 of 2004 and until four weeks have elapsed and the employee has earned four times his weekly benefit rate in subsequent covered wages. The employee is required to repay the amount of $4,168.00 in overpaid benefits.

Dated and mailed July 29, 2005
thompan2 . urr : 150 : 1  VL 1007.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission conferred with the administrative law judge regarding his demeanor and credibility impressions. While the administrative law judge credited the employee's version of the events, he did not point to any specific demeanor impressions supporting that assertion. The commission has reversed the appeal tribunal decision based on its crediting of the employer's version of the events over the employee's and based on the additional evidence obtained at the remand hearing.

 

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.C. 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.

 


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