GEORGE R BONGERT, Claimant

STEP INDUSTRIES INC, Employer

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge is affirmed. Accordingly, the claimant performed services for the employer in an employment and he is eligible for benefits based on his employment with the employer, if otherwise qualified. There is no overpayment.

Dated and mailed September 21, 2005
bongege . usd : 132 : 4   ET 483.10

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The employer has petitioned for commission review of the adverse appeal tribunal decision that found the claimant performed services for the employer in an employment. The employer argues that the claimant's services were performed in excluded employment pursuant to Wis. Stat. § 108.02(15)(g)2. Wis. Stat. § 108.02(15)(g)2 provides that work for a nonprofit organization does not include service:

In a facility conducted for the purpose of carrying out a program of rehabilitation for individuals whose earning capacity is impaired by age or physical or mental deficiency or injury, by an individual receiving such rehabilitation.

or

In a facility conducted for the purpose of providing remunerative work for individuals who because of the impaired physical or mental capacity cannot be readily absorbed in the competitive labor market, by an individual receiving such remunerative work.

There is no evidence that the employer is a facility conducted for the purpose of carrying out a "program of rehabilitation." The employer offers no rehabilitation services. The employer provides work to individuals who are recovering drug addicts or alcoholics, and co-dependent family members.

The employer did not demonstrate that the claimant could not be readily absorbed in the competitive labor market because of impaired physical or mental capacity. First, the commission would agree that recovering alcoholics may have impaired capacity. However, the commission will not assume this to be so for every recovering alcoholic. The employer did not demonstrate in the first instance that the claimant's physical or mental capacity was impaired. Assuming the record did support a finding that the claimant's physical or mental capacity was impaired, the commission agrees with the ALJ that the employer did not demonstrate that the claimant could not be readily absorbed in the competitive labor market because of such impairment. The claimant had part-time employment when he began working for the employer. The claimant declined three job offers, two soon after beginning his work for the employer, for reasons not related to impaired physical or mental capacity.

Finally, the commission declines to order further hearing to introduce evidence that claimant was convicted operating while intoxicated in November of 2003. The evidence could have been presented at the original hearing.

cc:
Attorney Christopher J. McKinny
Attorney Lance E. Mueller

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

uploaded 2005/09/28