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


ALBERT V LLAMBI, Employe

DEPARTMENT OF CORRECTIONS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98002528MD


On May 22, 1998, the Department of Workforce Development issued an initial determination which held that the employe quit but not for a reason allowing immediate eligibility for unemployment insurance. The employe timely requested a hearing on the adverse determination, and hearing was held on July 1, 1998 in Madison, Wisconsin before a department administrative law judge. On July 3, 1998, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe was scheduled to begin working for an employer in Kentucky in July of 1997. In the interim, the Wisconsin Department of Corrections (DOC) offered the employe limited term employment here. The employe took the employment, but told DOC he would have to leave at the end of June in order to begin his work in Kentucky. The employe's first day of work was June 9; his last day of work was June 11, 1997 (week 24), at which time he left Wisconsin to go to Florida and assist his step-mother, who had been in an accident and needed his assistance. The commission believes the circumstances of the employe's quit fall under Wis. Stat. § 108.04(7)(c), and so reverses the appeal tribunal decision.

The employe received a message that his step-mother had been in an accident and was in intensive care in a Florida hospital. She would be in the hospital for approximately 15 days after the accident. She speaks no English and, in addition to the assistance the employe directly provided her, the employe also had to straighten out his step-mother's finances (which had been in disarray since the employe's father's death earlier in the year). The employe's father and step-mother had been married for more than 20 years.

An employe who quits employment generally is ineligible for unemployment insurance until he or she meets certain requalifying requirements. There are exceptions to this disqualification, one of which is Wis. Stat. § 108.04(7)(c). That statute allows for immediate eligibility for unemployment insurance if the employe terminated employment because the employe had no reasonable alternative due to the health of a member of his or her immediate family. In this case, the employe's elderly step-mother, now a widow, had been in an accident and was in intensive care in a hospital in Florida. She speaks no English, and the employe was the only family member left. The employe had only two or three weeks left to work for the employer in any event, since he was leaving for Kentucky employment early in July. Under these circumstances, the commission concludes that the condition of the employe's step-mother necessitated his quit of employment with the employer and that he had no reasonable alternative thereto.

The issue upon which the administrative law judge resolved the case was the definition of "immediate family." The administrative law judge reasoned that, since the employe's step- mother had not adopted him, she could not be deemed a member of the employe's immediate family. Neither the unemployment insurance law nor the Wisconsin Administrative Code provisions dealing with unemployment insurance define "immediate family," however. The administrative law judge's restriction is unduly narrow. The individual at issue in this case was the wife of the employe's father. This is sufficient to make her a member of the employe's immediate family.

The commission therefore finds that the employe quit his employment, within the meaning of Wis. Stat. § 108.04(7)(a), but that he had no reasonable alternative because of the health of a member of his immediate family, within the meaning of Wis. Stat. § 108.04(7)(c).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is eligible for benefits beginning in week 24 of 1997, if he is otherwise qualified. If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employe based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed: September 16, 1998
llambal.urr : 105 : 7 VL 1023.13

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. The issue is not one of credibility, but rather the legal issue of who constitutes a member of an immediate family under Wis. Stat. § 108.04(7)(c).


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