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

TYRONE WHITMORE, Employee

LEVY RESTAURANTS AT  LAMBEAU FIELD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603644MW


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, except that it makes the following modifications:

Delete the fifth, sixth, eighth, and ninth paragraphs under the administrative law judge's Findings of Fact and Conclusions of Law.

Delete the third, fourth, fifth, and sixth sentences under the administrative law judge's decision paragraph.

Delete the two NOTES.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 17 of 2006, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate that would have occurred had the discharge not occurred. This matter is remanded to the hearing office to hold a hearing and issue a decision on whether an overpayment is created and, if created, whether the recovery of overpaid benefits must be waived. Testimony must be adduced to determine if benefits were paid due to the employer's failure to provide complete and correct information to the department, due to the employee's failure to provide complete and correct information to the department, or due to departmental error.

Dated and mailed October 13, 2006
whitmty . umd : 132 : 8  BR 335  PC 713

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission has reviewed the record in this matter and agrees with the administrative law judge's conclusion that the employee was discharged for misconduct connected with his work. The employee states in his petition that there was no mention at the hearing of money and he knows that the department already found the employer failed to comply with state law. The employee further asserts that he is without fault. The commission agrees with the employee that the ALJ did not address the overpayment issue at the hearing. The ALJ found that the overpayment was "not because of any error by the department and/or was caused partial or wholly by the employee." However, the finding does not specially indicate whether the employee was or was not at fault. No testimony was taken to support a finding that the employee was at fault. The determination of whether an overpayment is created depends on whether there is employer fault and employee fault. The hearing record does not contain any testimony on the overpayment issue. The employee contends that he is not at fault. If there is in fact employer fault, because it failed to provide complete and correct information to the department, and the employee is not at fault, then no overpayment should be created.

The ALJ's note indicated that the employer did not appeal the charging portion of the determination. However, the commission believes that caution should be used when excluding an issue from the hearing. First, since the employee was allowed benefits, the employer fault issue would only become relevant if the employer was successful at the hearing level. Further, the notice of hearing in this case listed employer fault as an issue to be potentially addressed at the hearing. This alone may lead a party to believe that they successfully appealed the separation and the charging/fault issue. Similarly, it would go too far to expect the employee to appeal the statement that he failed to provide complete and correct information, when he was allowed benefits by the initial determination, in case the employer appealed. Third, the initial determination itself does not list the effect/consequences of the statements contained therein that the employee and employer failed to provide complete and correct information to the department. Wis. Stat. § 108.09(2r), does provide that any party may request a hearing "as to any matter" in the determination. However, the commission believes that such language does not mean a party's failure to specifically object to each finding or statement in the determination should limit the issues addressed at hearing unless the party specifically indicates that it does not wish to appeal a particular finding. For example, an employer may choose to appeal the finding that an employee is allowed benefits based on the separation from employment, but agrees with and chooses not to appeal the finding that it failed to provide complete and correct information. However, a party is not required to state with particularity its disagreement with the initial determination when filing an appeal. A party who chooses to state the employee had been discharged for insubordination should not be held to limit its appeal to only the separation when a party who simply states "I appeal" is considered to have placed all adverse findings and conclusions at issue. The hearing office and ALJs should assume, unless the party affirmatively states otherwise, that an adverse or potentially adverse finding has been appealed and is an issue to be addressed at the hearing and in the decision. To the extent that prior commission decisions have approved of limiting issues to be addressed at a hearing the commission will no longer follow those decisions.

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Levy Premium Foodservice - Chicago, IL
Wisconsin Center District


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uploaded 2006/10/16