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

JENNIE A PELOQUIN, Employee

OAKWOOD HILLS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201726EC


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 over two years as an activities director for the employer. Her last day of work was October 7, 2005 (week 41). The employee initiated a claim for unemployment benefits in the calendar week ending July 8, 2006 (week 27).

In August of 2005, the employee injured her back. She was released to return to work with permanent restrictions as of July 5 or 6, 2006 (week 27). When she contacted the employer about returning to work, she was informed that the employer did not have work within her restrictions and her employment was terminated.

The initial issue to be decided is the nature of the separation of employment, whether the employee quit or was discharged.

In this case, the employee did not voluntarily terminate her employment. Rather, the employer terminated the employment relationship because the employee was unable to perform the work that the employer had available. It is management's prerogative to determine the physical requirements of the work.

Wisconsin Stat. § 108.04(1)(b) provides that a claimant is ineligible for benefits if his or her employment was terminated by the employer because the claimant was unable to do, or unavailable for, suitable work otherwise available with the employer and if the claimant is unable to work, or unavailable for work.

A second issue to be decided is whether the employee was able to work and available for suitable work in her labor market.

The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative Code implements the statues and provides that a claimant will not be considered able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.

Department rules further define "suitable work" as "work that is reasonable considering the claimant's training, experience, and duration of unemployment as well as the availability of jobs in his labor market." Wis. Admin. Code § DWD 100.02. [emphasis added]

Unemployment law permits an individual a canvassing period of up to six weeks to seek work commensurate with his skills and prior wage and to refuse jobs which involve a lower grade of skill or significantly lower wage. (Wis. Stat. § 108.04(8)(d)). Thereafter, he may be asked to lower his sights on a sliding scale basis and accept less desirable work.

The employee has had work experience as an activities director at a nursing home, security supervisor, office manager, placement coordinator, waitress and bartender. She has graduated from high school, and has completed one class in consumer family management. In a certified medical report, the employee's doctor states that the employee is restricted to sedentary work. She must avoid climbing, crawling, and kneeling. She can occasionally perform stooping and crouching. She is limited to two-thirds normal reaching ability.

Considerable evidence was offered at the hearing concerning whether the employee was otherwise able and available for work despite her restrictions. Both a labor market report and expert labor market testimony are contained in the record. The employee was discharged in week 27 of 2006. The labor market report and the labor market testimony concluded that in weeks 1-6 of her unemployment (weeks 28 through 33 of 2006), the employee was able to perform 79.17 percent of the suitable jobs in her labor market. However, the labor market analyst testified that after the six week canvassing period, as the employee's unemployment continued, her universe of suitable jobs expanded and included more unskilled physical jobs that she was unable to perform due to her restrictions. After week 6, her ability to work this larger universe of suitable jobs dropped to 21 percent during weeks 7-10 of her unemployment (weeks 34 through 37 of 2006). Her ability to perform suitable work fell below the minimum threshold of 15 percent in week 38 of 2006. It remained at 12-13 percent thereafter. Based on this testimony, the commission concludes that the employee was able and available for work from week 27 through week 37 of 2006, but not thereafter.

The commission therefore finds that in week 27 of 2006, the employee did not voluntarily terminate work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that in week 27 of 2006, 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 and the employee was able and available for suitable work in weeks 27 of 2006 through 37 of 2006, within the meaning of Wis. Stat. § 108.04(1)(b)1.

The commission further finds that beginning in week 38 of 2006, the employee was unable to work, or unavailable for work, within the meaning of Wis. Stat. § 108.04(2)(a) and chapter DWD of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the employee is eligible for benefits in weeks 27 through 37 of 2006. She is ineligible beginning in week 38 of 2006, and until she is again able to work and available for work.

Dated and mailed February 21, 2007
peloqje . urr : 178 : 1 AA 105

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Despite the testimony that the employee was able and available for more than 15 percent of the suitable jobs in her labor market during weeks 1 thorough 10 of her unemployment, the ALJ found her to be ineligible. Based on the record, the commission reverses with respect to the first 10 weeks and affirms for weeks thereafter when evidence supports that her ability to work falls below the minimum of 15 percent of suitable jobs in her labor market.

cc: Eau Claire Retirement Residence LLC


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