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

MARK ROWE, Employee

ALSUM PRODUCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06000146MD


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 ten months for the employer, a produce wholesaler. His last day of work was on November 16, 2005. He was scheduled to work thereafter, but was absent November 17 and 18 (week 47), due to illness, with notice to the employer.

The employee worked under a work-release program or agreement that the nearby prison had with the employer. The employer was aware from the prison that the employee would be released from incarceration on Tuesday, November 22, 2005. As was its practice, the employer hired a replacement for him who began working on Monday, November 21, 2005, because the employer anticipates work release workers will pack up on Monday before a customary Tuesday release. The employee was required to return to Dane County upon his release. The employee's only work restriction is that he can not work in places that serve alcoholic beverages.

Prisoners whose jobs end solely due to the conditions of their releases from prison do not voluntarily quit their employment. The commission finds that such separations are not directly caused by either the employer or the employee but by the Department of Corrections. Stevenson v. Alsum Produce Inc., UI Dec. Hearing No. 05000181MD (LIRC May 27, 2005); Hopkins v. Packerland Packing Company Inc., UI Dec. Hearing No. 97600010EC (LIRC Mar. 27, 1997) and Mattes v. LSJ Sportswear, Inc., UI Dec. Hearing No. 97600010EC (LIRC Jan. 26, 1995).

The employer's account will not be charged for the employee's benefits pursuant to Wis. Stat. § 108.07(8). This provision provides that benefits are chargeable to the balancing account instead of the employer's account if a prisoner's employment with a private employer is ended because the conditions of incarceration make it impossible to continue. This provision recognizes that in such instances, the termination of the employment relationship is not truly attributable to either party and the employer should not therefore bear the cost of the employee's benefits.

The commission therefore finds that in week 47 of 2005, the employee's employment was terminated by the employer because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of Wis. Stat. § 108.04(1)(b)1, but that the employee was able to work and available for work on the general labor market, within the meaning of said section.

DECISION

The decision of the administrative law judge is modified according to the foregoing Findings of Fact and Conclusions of Law, and, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 47 of 2005, if he is otherwise qualified. Pursuant to Wis. Stat. § 108.07(8), benefits otherwise chargeable to the employer, as an employer subject to the contribution requirements of the law, shall be charged to the fund's balancing account.

Dated and mailed March 24, 2006
rowemar . urr : 132 : 1 :  VL 1016 AA 245

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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