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

DENNIS A SHOOK, Employee

WISPOLITICS.COM, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06604312MW


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

On April 22, 2006, the department issued an initial determination finding the claimant to be an employee for benefits purposes. The last day to file a timely appeal was May 8, 2006. The employer's appeal was filed on June 30, 2006.

A request for hearing that is not received or postmarked by the 14th day after the issuance of an initial determination is not timely under Wis. Stat. § 108.09 (2r). An untimely hearing request must be dismissed unless the party filing the request shows that it was late for a reason beyond the party's control. Wis. Stat. § 108.09 (4)(c).

The issue to decide is whether the employer's appeal was late for a reason beyond its control.

The initial determination was mailed to the employer at the post office box address provided, but was not received. The employer's witness credibly testified that mail sent to its post office box is sometimes mixed up with mail addressed to a box with a similar number, and speculated that that might have happened in this case.

The employer was receiving UCB-23 wage verification/eligibility reports to complete for the employee. However, the employer considered the employee to be an independent contractor. On June 7, 2006, the employer e-mailed the department and asked whether the UCB-23 reports could be stopped. On June 8, a department representative responded that the reports could not be stopped because a decision had been made finding the claimant to be an employee. The employer immediately e-mailed back to object that it had not been consulted when the employee's status was determined and to ask how it could challenge the decision.

On June 9, 2006, a department representative sent the employer an e-mail explaining that the initial determination was issued based on information from a previous audit. The employer was informed that a late appeal could be filed, and was told what address the appeal should be sent to. On June 12 the employer responded that, before it appealed, it needed to see a copy of the decision. The same day the department representative replied by e-mail that she would mail the employer a copy of the decision. It is not clear from the file when the decision was mailed, or on what date it was received by the employer. Assuming the duplicate determination was mailed on or about June 12, it is reasonable to infer that it would have been received by June 15.

Upon receipt of the initial determination, the employer began gathering documentation to file an appeal, and made an open records request for the paperwork the employee had filed with the department. The employer's appeal was postmarked on June 30, 2006.

Wis. Admin. Code § DWD 140.01(2)(a) provides that, if a party first receives a determination after the statutory appeal period has expired, through no fault of that party, the statutory appeal period extends from the date the party receives the determination, such that an appeal received within that time limit is timely filed. Assuming a June 15 date of receipt, the employer's appeal would be considered timely if filed by June 29, 2006. However, the fact that the appeal was filed one day thereafter does not necessarily warrant dismissal of the appeal, and the commission sees no reason to dismiss the appeal in this case.

The employer was not on notice that it had fourteen days in which to file its appeal. The e-mail from the department advised the employer it could file a late appeal, but made no mention of a specific deadline for doing so. The initial determination also contains no reference to a fourteen-day appeal period. Although the initial determination indicates that a decision had to be filed by May 8, 2006, that deadline had already elapsed by the time the employer received the determination, and the employer had no way of knowing how the May 8, 2006, date was calculated. The employer acted expeditiously to discover the initial determination and to prepare and submit its appeal, and it did so within a reasonable time.

The commission therefore finds that the employer failed to file a timely request for hearing but that this failure was for a reason beyond its control, within the meaning of Wis. Stat. § 108.09(4), and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the hearing office for a hearing and decision on the merits of the employer's appeal.

Dated and mailed November 3, 2006
shookde . urr : 164 : 1  PC 711

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did not confer with the administrative law judge regarding witness credibility. The commission's reversal is as a matter of law.

 

cc: Jeff Mayers


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uploaded 2006/11/06