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

ROBERT D ZINGALE, Employee

LIFTCO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06202221EC


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 about three months as a mechanic for the employer, a construction equipment rental and sales business. His last day of work was on or about October 12, 2006 (week 41).

Prior to working for the employer the employee was residing in Trempealeau County. While on vacation in the West Bend area, he obtained a job with the employer. The employee has been on probation since the latter part of 2005. He checked with his probation officer about moving to Washington County to take the job with the employer. The employee had employment and a residence lined up and his probation officer told him that he would be able to transfer his probation to Washington County. Once there, complications developed over his probation and the employee was notified that he had to return to Trempealeau County to complete his probation or face having his probation revoked in Washington County and being sent to jail. The employee ended his employment with the employer and returned to his parents' residence in Trempealeau County.

The first issue to be decided in this case is whether the employee voluntarily terminated his employment and, if so, whether his quitting was for any reason which would allow the immediate payment of unemployment benefits.

In this case, the employee accepted a job away from his home county in the hopes that his probation could be transferred. The Department of Corrections was not responsible for his relocation. When the transfer of his probation supervision was ultimately denied, he quit his job and returned to his home county.

Wis. Stat. § 108.04(7)(a) provides that an individual who quits a job will have all of his or her benefit eligibility suspended. The only exceptions are those stated in the law. Wisconsin Stat. § 108.04(7)(b) provides an exception to the quit disqualification if the employee quits work with good cause attributable to the employer.

The employee quit his job to relocate in order to continue his probation supervision. He had a compelling personal reason for quitting, since he risked jail otherwise. However, no action by the employer prompted his quitting. He did not quit with good cause attributable to any employer fault nor does his reason for quitting fall within any other statutory exception which would permit the immediate payment of benefits.

The next issue to be decided is whether erroneously paid benefits must be repaid to the department.

Wisconsin Statute § 108.22(8) provides that recovery of overpaid benefits shall be waived if the overpayment occurred as the result of departmental error and if the overpayment was not caused by the claimant's fault or by a false statement or misrepresentation by the claimant. Under Wis. Stat. § 108.02(10e) "departmental error" is defined as:

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake or evidentiary fact, whether by commission or omission; or

(b) Misinformation provided to a claimant by the department, on which the claimant relied.

There was no claimant fault or false statement or misrepresentation by the claimant that resulted in the erroneous payment of benefits. The claimant was paid benefits because the ALJ misapplied the law. The commission finds that the ALJ's mistake of law constituted error on the part of the department as defined in Wis. Stat. § 108.02(10e).

The commission therefore finds that in week 41 of 2006, the employee terminated work with the employing unit, within the meaning of Wis. Stat. § 108.04(7)(a), and that this quitting was not for any reason permitting the immediate payment of unemployment benefits.

The commission further finds that due to department error and not due to any action by the employee, the employee was paid benefits in the total amount of $6138.00, during weeks 42 through 52 of 2006 and weeks 1 through 7 of 2007, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1) but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 41 of 2006. Recovery of the overpaid benefits is waived. The employee is not required to repay the department, nor will the overpaid benefits be recovered by any other means. The appropriate employer accounts will be credited immediately with the overpaid amount.

Dated and mailed March 1, 2007
zingaro . urr : 178 : 1 VL 1016  VL 1033  BR 335.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the department argues that the administrative law judge erred by finding the employee eligible under a charging provision of the statutes which applies to state prisoners. That statutory provision provides that an employer will not be liable for benefits paid to a state prisoner if the prisoner must leave his job because of a transfer of his confinement or supervision. The employee was not confined in any institution during the period at issue here. He was on probation. This section does not apply to him.

Furthermore, this charging provision does not resolve whether the employee's separation from employment makes him ineligible for benefits. The department correctly points out that the statute at issue, Wis. Stat. § 108.07(8)(b), is a charging provision and not an exception to the quit disqualification.

The commission has found that the employee voluntarily quit his job when he relocated back to Trempealeau County. However, it has waived repayment of the benefits which were overpaid due to this misapplication of law.

cc: Daniel J. Larocque


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