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

LORI A WAALEN, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05201452EC


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 for about eight months as production line laborer for a cheese producer. Her last day of work was October 21, 2004 (week 43).

During the week ending October 30, 2004 (week 44), the employee initiated a claim for unemployment benefits against the State of Minnesota. In making that claim, she used wages derived both from the State of Minnesota and the State of Wisconsin. She exhausted that claim for benefits sometime prior to the week ending May 14, 2005 (week 20). She thereupon sought to make a claim against the State of Wisconsin. She had not worked or earned wages between October 24, 2004 and the week ending May 14, 2005 (week 20).

Wisconsin Stat. § 108.04(4) provides as follows:

QUALIFYING CONDITIONS. (a) A claimant is not eligible to start a benefit year unless the claimant has combined base period wages equal to at least 30 times the claimant's weekly benefit rate under s. 108.05(1), including combined base period wages equal to at least 4 times the claimant's weekly benefit rate under s. 108.05(1) in one or more quarters outside of the quarter within the claimant's base period in which the claimant has the highest base period wages.

(b) There shall be counted toward the wages required by par. (a) any federal service, within the relevant period, which is assigned to Wisconsin under an agreement pursuant to 5 USC 8501 to 8525.

(c) An employee is not eligible to start a new benefit year unless, subsequent to the start of the employee's most recent benefit year in which benefits were to be paid to the employee, the employee has performed services and earned wages for those services equal to at least 8 times the employee's latest weekly benefit rate under s. 108.05(1) that was payable to the employee in the employee's most recent benefit year in employment or other work covered by the unemployment compensation law of any state or the federal government.

The issue to be decided is whether the claimant had sufficient work and wages after the start of her most recent benefit year to begin a new benefit year.

The employee had no work or wages following the beginning of her benefit year in Minnesota. The underlying principal of the above statutory section, as enunciated by the U.S. Department of Labor, is to prevent individuals from receiving benefits in two successive years based on a single separation from employment (see UIPL 18-92). The most reasonable interpretation of the law is that the employee is ineligible for benefits in Wisconsin until sufficient new wages are earned. To do otherwise would permit the employee to collect benefits in two successive years following a single separation, contrary to federal policy. Moreover, such a result would give a claimant with wages in two states a greater entitlement to benefits than a worker who performed all her services in Wisconsin. The commission does not accept that such a result was intended by the statute.

The commission therefore finds that as of week 20 of 2005, the claimant was not eligible to begin a new benefit year because the claimant had not earned wages equal to a least eight times the applicable weekly benefit rate after the start of her most recent benefit year, within the meaning of Wis. Stat. § 108.04(4).

The commission further finds that the employee was paid benefits in weeks 20 through 33 of 2005, amounting to a total of $4,499; for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), be cause although the over payment 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 a department error. See Wis. Stat. § 108.22 (8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is not entitled to establish a benefit year. She is required to repay the amount of $4,499 to the Unemployment Reserve Fund.

Dated and mailed January 31, 2006
waalelo . urr : 178 : 4   BR 338

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility with the ALJ prior to reversing. The commission accepts the ALJ's factual findings but reaches a different result when applying the law to those facts.

 

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.

 

cc:
Attorney Warren Lee Brandt
Daniel J. LaRocque


Appealed to Circuit Court.

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