LORI F JOHNSON, Employee
TOTAL PERSONNEL 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 makes the following:
The employee worked in several assignments for about a year for the employer, a staffing service. Her last day of work was June 7, 2005. Her last assignment involved second shift work at $8.00 per hour.
On July 14, 2005, the employer offered the employee a position to begin on July 18, 2005 (week 30). The position was at Straus Knitting in St. Croix Falls. The position was as a knitting machine tender and cuff cutter. The starting pay was $8.39 per hour which would be paid for the first three weeks. The first three weeks involved training on first shift. Thereafter the employee would go to second shift and be paid $8.89 per hour. The employee told the president that she did not want the job as she had applications in other places. The president told the employee to contact the employer if she was looking for work.
The initial issue to be decided is whether the employee received a bona fide offer of work. The commission finds she did. While the employee maintained that the president stated the president was not sure whether the job was there yet, the commission credits the president's testimony that the job was available.
The second issue is whether the work was suitable to the employee and, if so whether she had good cause to refuse that work.
The employee indicated that she did not have experience in knitting mills. However the employee did not establish that she was unable to perform the work based on her education and training. The employee could have tried the work before concluding that she could not do the work. The employee was offered work that paid more than her previous rate of pay with the employer.
A labor market analyst testified at the hearing that the substantially less favorable wage rate for work similar to that offered the employee is $7.68 per hour. First shift was prevailing in the employee's labor market. However, the employee's preferred shifts were second and third. The labor market analyst also testified that the customary travel distance is 15 to 18 miles for jobs in that pay range. At the time of the offer the employee lived in Luck and the job was in St. Croix which was estimated to be a 20-25 mile commute. The commuting distance is not a labor standard and therefore would not apply for cause absent the employee raising an objection to the commute. She did not do so. The only reason the employee gave the employer for refusing the offer of work was that she had other prospects. That one has other job prospects does not provide good cause for refusing actual work. While the employee testified that she was taking care of her mother, in particular taking her to and from the hospital, she also testified that she was available for work.
The commission therefore finds that in week 30 of 2005 the employee failed to accept an offer of suitable work and that the wages, hours and other conditions of the work offered the employee were not substantially less favorable than existed for similar work in her labor market, and the employee did not establish good cause for failing to accept the offered work, within the meaning of Wis. Stat. § § 108.04(8)(a) and (c) and 108.04(9).
The commission further finds that the employee was paid benefits in the amount of $2,576.00 for weeks 30 through 46 of 2005, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).
The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.
The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).
The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment 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 departmental error. See Wis. Stat. § 108.22(8)(c)2.
The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 30 of 2005, and until four weeks have elapsed since the end of the week in which the failure occurred and the employee has earned wages in covered employment after the week of the failure equal to four times the weekly benefit rate that would have been paid had the failure not occurred. The employee is required to repay the amount of $2,576.00 to the unemployment reserve fund.
Dated and mailed April 13, 2006
johnslo . urr : 132 : 8 :
SW 810.15 SW 845.03
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ did not impart any demeanor impressions he had of the employee. The ALJ indicated that the employer's witness came across as rigid and appeared anxious to win the case. The commission finds an actual job existed and was offered the employee based in part on the details that both parties provided regarding the job. The employer acknowledged that at times it would solicit interest in a position, but testified that this was not such a situation. The commission credits the employer's testimony that a job existed.
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.I. 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.
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uploaded 2006/04/17