MARLENE D BAUMAN, Employee

INDIANHEAD FOODSERVICE DISTRIBUTOR 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, benefits are denied beginning in week 38 of 2005 and for a period of up to five weeks thereafter, or until the license is reissued or renewed, whichever occurs first. Thereafter, benefits are allowed, if otherwise qualified. The employee is required to repay the sum of $658 to the Unemployment Reserve Fund.

Dated and mailed March 1, 2006
baumama . usd : 145 : 1  AA 130

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In her petition for commission review the employee asserts she was required to call on customers and to get orders for the employer's products. The employee argues that she was not required to have a driver's license in order to do this work. However, the employee was required to call on customers and potential customers in person, and it was necessary to have a license in order to make these calls. The commission has held that a worker in this situation is required by law to have a license issued by a governmental agency to perform his or her customary work for the employer. See Zindler v. Cintas Sales Corp., UI Dec. 97608037WK (LIRC April 10, 1998). The employee argues that having a license was not an integral part of her job, and she could have arranged for a driver and she still would have been able to perform her work. The employee's argument is, essentially, that she could have gotten another person who did have a license to assist her with this work by performing the driving aspect of it for her. If this is the case, it was the employee's responsibility to inform the employer that she had made alternative travel arrangements.

cc:
Indianhead Foodservice Distributor (Eau Claire, Wisconsin)
Attorney Keith R. Hughes

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uploaded 2006/03/07