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

ERIK M AUKLAND, Employee

DOOR COUNTY YOUNG MENS CHRISTIAN ASSN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05005480MD


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 42 of 2005, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wags in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $517.00 to the Unemployment Reserve Fund.

Dated and mailed March 9, 2006
auklaer . usd : 164 : 1   VL 1039.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In his petition for commission review the employee argues that at the time he quit his job with the employer he held two other jobs, one at which he worked 30 hours per week and one at which he worked 7 hours per week. The employee contends that these two jobs, when combined, constitute "full-time employment," within the meaning of the statute. However, assuming without deciding that the statutory requirement can be satisfied by combining multiple jobs, or that the employee can otherwise establish that he quit his job with the employer because of the loss of full-time employment, the commission would nonetheless be compelled to conclude that his quitting did not fall within the statutory exception articulated in Wis. Stat. § 108.04(7)(k), where the evidence failed to demonstrate that it was economically unfeasible for him to continue in the work for the employer.

Whether work is "economically unfeasible" is determined by applying Wis. Admin. Code § DWD 132.03(3)(b), which provides:

To determine whether the loss of the full-time work makes it economically unfeasible for the claimant to continue the part-time work, the department shall add the amount of the claimant's gross wages from the part-time work for the week preceding the week in which the claimant terminates the part-time work to the amount of unemployment benefits payable for that week and subtract from this sum the expenses incurred by the claimant in that week for the part-time work. If the remainder is less than the claimant's full weekly benefit rate for that week, the department shall consider it economically unfeasible for the claimant to continue the part-time work.

The word "expenses" is defined as "the expenses incurred by the claimant to maintain part-time work and includes travel expenses, child care expenses and any other reasonable work-related expenses." Wis. Admin. Code § DWD 132.03(1)(a). Expenses associated with living in general, such as rent, food, and clothing, are not included. Rather, only the expenses directly associated with that part-time work are considered. Kaehn v. Riverside Chiropractic Clinic (LIRC, May 9, 2002); Miller v. National Delivery Service Inc. (LIRC, Apr. 10, 1996). The employee presented no evidence as to any expenses specifically associated with his work for the employer. The cost of living in Door County in general is not the type of "expense" contemplated by the exception.

While the employee may have made a valid personal decision to quit his part-time employment and leave Door County, the commission must agree with the appeal tribunal that he failed to demonstrate his quitting fell within the "quit, part-time" exception provided in Wis. Stat. § 108.04(7)(k), or within any other statutory exception permitting the immediate payment of benefits. Accordingly, the appeal tribunal decision is affirmed.

 

NOTE: In a response to the employee's petition, the employer states that it does not disagree on the merits of the case, but thinks its reserve account should not be charged. The employer provides an explanation as to why it did not file a timely appeal of the initial determination, which held that the overpayment would remain charged to the employer's reserve account because it neglected to submit a timely UCB-16. The employer states that it believed it had filed a timely UCB-16 but did not have adequate information to prove it and, further, that because benefits were not allowed, it thought this was no longer an issue. The employer also indicates that it believed it would only be charged for the $2.72 which was paid through its reserve account, rather than for the entire overpayment. The commission declines to order further hearing on this issue, as none of the excuses offered by the employer would establish that its failure to file a timely appeal was for a reason beyond its control, which is the only circumstance permitting acceptance of a late appeal.



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uploaded 2006/03/13