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


CHRISTINA MITCHELL, Employe

NORTH SIDE BIG VALUE STORE, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97600370MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe initiated a valid new claim for unemployment insurance in week 36 of 1996, the calendar week ending September 7. As of that week, she was enrolled as a senior in high school and was attending classes during the hours of the first shift. She is 17 years old. She has been employed as a dietary aide since December 10, 1996 (week 50).

The issue to be decided is whether the employe is available for work.

Sec. 108.04(2)(a), Stats., provides that to be eligible for benefits for any week in which no wages are earned a claimant must be available for work. The statutes are implemented by Chapter ILHR 128 of the Wisconsin Administrative Code, which provides that a worker who, without good cause, restricts her opportunities to less than 50 percent of suitable jobs in the locality will not be available for work. A Note to section ILHR 128.01(2)(a) states that school attendance is generally a controllable restriction and, therefore, without good cause unless the person is in an approved training program.

The department's records reflect that during week 51 of 1996 the employe earned no wages. By attending school, the employe has limited her opportunities to less than 50 percent of the suitable jobs in the locality. In the employe's labor market, only 17 percent of full-time suitable work was available to the employe because of her school attendance. It must then be determined whether the employe had good cause for restricting her employment opportunities to less than 50 percent of the suitable jobs in her labor market. While the commission agrees that it is extremely important that a worker complete the basic requirements of his or her education, traditionally the department has not regarded high school attendance as good cause for restricting one's availability for work. Moreover, a note in the Code states that school attendance is considered a controllable restriction and not good cause, except where the schooling falls within the definition of approved training in sec. 108.04(16), Stats.

Section ILHR 128.01(5), provides that the department may require a claimant who is partially unemployed to meet the 50 percent availability requirement if there is some definite indication that the claimant is not genuinely interested in working full time. The employe has earned wages during most of the weeks at issue and therefore was partially unemployed. There was no evidence adduced which would suggest that the employe was not genuinely interested in obtaining full-time work. Further, there was no evidence that the department has advised the employe that she is required to meet the 50 percent availability requirement. Therefore, the employe did not need to be able to work and available for work during those weeks. The employe's wages while claiming have been too great to permit benefit payment except for week 4 of 1997. She is eligible for a benefit payment of $20 for week 4 of 1997.

The commission therefore finds that in week 50 of 1996, and beginning again in week 52 of 1996, the employe was not subject to availability requirements because she was partially employed for work within the meaning of sec. 108.04(2)(a), Stats., and Chapter ILHR 128 of the Wisconsin Administrative Code.

The commission therefore finds that in week 51 of 1996, the employe was not able to work and not available for suitable work, because she earned no wages and was therefore subject to the availability requirement, within the meaning of sec. 108.04(2)(a), Stats., and Chapter ILHR 128 of the Wisconsin Administrative Code.

The commission further finds that the employe was paid benefits in the amount of $55 for week 51 of 1996 for which she was not eligible and to which she is not entitled, within the meaning of sec. 108.03(1), Stats.

The commission further finds that waiver of benefit recovery is required under section 108.22(8)(c), Stats., because the overpayment was the result of a departmental error, and because the ALJ failed to apply the department's long standing practice regarding school attendance as a controllable restriction, the overpayment did not result from the fault of the employe as provided in section 108.04 (13)(f), Stats.

DECISION

The decision of the administrative law judge is reversed as to week 51 of 1996, and affirmed as to the remaining weeks at issue. Accordingly, the employe is ineligible for benefits for week 51 of 1996. She is eligible for benefits in week 50 of 1996, and beginning again in week 52 of 1996, as long as she is partially unemployed. The recovery of overpaid benefits is waived.

Dated and mailed May 8, 1997
mitchch.urr : 145 : 5   AA 205 AA 253

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ but reversed his decision in part as a matter of law.

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS


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