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

BRANDON J MATKE, Employee

MANPOWER TEMPORARY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201055EC


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 employee worked about two months performing assembly work at a cardboard box and display manufacturer in Oshkosh, Wisconsin. At the time the employee was an inmate at a state prison and was working through the prison's work release program at the packaging business through the employer, a staffing agency. When he was put on the assignment, he signed a set of state rules that he was to follow. His last day of work was February 7, 2005 (week 7). He was informed on February 8, 2005, (week 7), by prison staff, that he could no longer go to work and that his position had been terminated.

The prison supervisor learned of complaints about the employee's attitude and work performance. As a result of these complaints, the supervisor determined that the employee could no longer be allowed to work. The employer failed to establish that any of these complaints were legitimate.

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 incarceration 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 work ended when he became unavailable for work otherwise available by the employer due to the work release coordinator's decision to end his work release privileges. The employee did not have the option of remaining in employed with the employer.

The next issue to be determined is whether the employee was otherwise able to and available for work following his separation. The employee was released from prison on April 9 (week 15). There is no evidence that at the time he was released, 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 7 of 2005, 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 as of week 15 of 2005, 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 modified to conform to the above findings and, as modified, is affirmed. The commission therefore finds that, the employee is eligible for benefits beginning in week 15 of 2005, 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 funds balancing account.

Dated and mailed September 19, 2005
matkebr3 . urr : 145 : 1 VL 1007.01

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not modify the ALJ's decision based on a differing impression of the credibility of the witnesses. Rather, the commission modified the ALJ's decision because it reached a different legal conclusion based on the record.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

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

 


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/09/28