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

RICHARD K STENSRUD, Employee

WESTAFF (USA) INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201353EC


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

In February of 2005, the employee began working at a fiberglass panel manufacturer for the employer, a staffing agency. His last day of work at the assignment was April 28, 2005 (week 14).

On the last day of work, the employee saw a doctor about an injury. On the following day, the employee notified the employer that he was unable to work. On the following workday, May 2, 2005 (week 19), the employer's placement coordinator telephoned the employee and stated that his assignment at the fiberglass manufacturer had ended. After the telephone call, the employee saw his doctor who permitted him to return to work under certain restrictions. On May 3, 2005 (week 19), the employee went to the office to turn in his medical paperwork. The coordinator told the employee that there was light work available for him. She expected him to return to work on the following day at 8:00 a.m.

On May 4, 2005 (week 19), the employee went to the office to collect his paycheck. The coordinator told him that there was light work available. The employee indicated that he was unable to work due to personal obligations. The coordinator told him that if he was refusing the work, she would try to get him an assignment in another business. The employee indicated that it was unlikely he could be assigned to work at that business as he had been previously discharged by the business. The employee did not report to work during the remainder of that week or the following week. He was restricted by his doctor from performing any work during the calendar week ending May 21, 2005 (week 21).

The nature of the employment relationship between a temporary help agency and a worker contemplates that assignments would be offered in a variety of locations. In Narlock v. Cornwell Personnel Associates Ltd., UI Dec. Hearing No. 04603511MW (LIRC March 8, 2005), the Labor and Industry Review Commission held that a failure to accept an offer of work in a temporary employment agency employment did not constitute a quitting. It found that there was an issue regarding whether the employee failed to perform work that was available to him and what affect that failure would be to his eligibility for unemployment benefits. In the instant case, the employer had work available within the employee's restrictions. The employee failed to perform that work.

Wisconsin Stat.§ 108.04(1)(a) provides as follows:

(a) An employee's eligibility for benefits shall be reduced for any week in which the employee is with due notice called on by his or her current employing unit to report for work actually available within such week and is unavailable for, or unable to perform, some or all of such available work. For purposes of this paragraph, the department shall treat the amount that the employee would have earned as wages for that week in such available work as wages earned by the employee and shall apply the method specified in s. 108.05(3)(a) to compute the benefits payable to the employee. The department shall estimate wages that an employee would have earned if it is not possible to compute the exact amount of wages that would have been earned by the employee.

(b) The light work that was available was at the rate of pay of $8.30 per hour. There were eight hours of light work available per day. During the calendar week ending May 7, 2005 (week 19), the employee could have worked 24 hours and earned wages in the amount of $199.20. During the calendar week ending May 14, 2005 (week 20), he could have worked 40 hours and earned wages in the amount of $332. Due to the amount of wages that the employee could have earned had he performed the available work, he was not eligible for the payment of benefits during weeks 19 and 20 of 2005. He was not eligible for the payment of unemployment benefits as of the calendar week ending May 21, 2005 (week 21), because he was not able to work and not available for suitable work due to his medical condition.

The commission therefore finds that in week 19 of 2005, the employee did not fail to accept an offer of work, within the meaning of Wis. Stat. § 108.04(8)(a).

The commission further finds that in weeks 19 and 20 of 2005, the employee was with due notice called on by the current employing unit to report for work actually available within the week and was unavailable for, or unable to perform, some or all of such available work, within the meaning of Wis. Stat. § 108.04(1)(a).

The commission further finds that had the employee performed all of the work available in week 19 of 2005, the employee could have earned wages in the amount of $199.20 resulting in no weekly benefit payment, within the meaning of Wis. Stat. § § 108.02(26) and 108.05(3).

The commission further finds that had the employee performed all of the work available in week 20 of 2005, the employee could have earned wages in the amount of $332 resulting in no weekly benefit payment, within the meaning of Wis. Stat. § § 108.02(26) and 108.05(3).

The commission further finds that as of week 21 of 2005, the employee was not able to work and/or not available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and chapter DWD 128 of the Wisconsin Administrative Code.

The commission further finds that the employee was paid benefits in the amount of $1,222 during weeks 21 through 38 of 2005; for which he was not eligible and to which he was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

The next issue to be decided is whether the erroneously paid benefits must be repaid to the department.

Wisconsin Statute § 108.22(8) provides that recovery of overpaid benefits shall be waived if the overpayment occurred as the result of departmental error and if the overpayment was not caused by the claimant's fault or by a false statement or misrepresentation by the claimant. Under Wis. Stat. § 108.02(10e) "departmental error" is defined as:

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake or evidentiary fact, whether by commission or omission; or

(b) Misinformation provided to a claimant by the department, on which the claimant relied.

There was no employee fault or false statement or misrepresentation by the employee that resulted in the erroneous payment of benefits. The employee was paid benefits because the department did not fully implement the ALJ's decision which suspended benefit payment. The commission finds that the department's failure to place a hold on his unemployment benefits constituted error on the part of the department as defined in Wis. Stat. § 108.02(10e).

The commission further finds that due to department error and not due to any action by the employee, he was paid benefits in the amount of $ 1,222, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c)."

DECISION

The decision of the administrative law judge as modified is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 19 of 2005 and until he is again able and available for work. Recovery of the overpaid benefits for weeks 21 through 38 of 2005, in the amount of $1,222 is waived. The employee is not required to repay the department, nor will the overpaid benefits be recovered by any other means. The appropriate employer accounts will be credited immediately with the overpaid amount.

Dated and mailed December 2, 2005
stensri . urr : 178 : 4   AA 110  BR 335.03

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission affirms the decision of the ALJ and has included her findings in their entirety. The commission's decision reflects the fact that the employee continued to receive benefits after the hearing contrary to the ALJ's decision. Since the employee received benefits solely due to department error, the overpayment must be waived. The employee had no role in this error.

cc:
Attorney Michael O. Erspamer
Westaff (Rice Lake, Wisconsin)


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uploaded 2005/12/05