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

GARY R RADKE, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06403168AP


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 claimant was allowed to reschedule his mandatory participation in re-employment services at the local Job Service office on November 28, 2006 due to a time conflict with a job interview. He was subsequently sent a department notice stating that he was to participate in re-employment services at the same location on December 6, 2006 (week 49). He failed to note the appointment on his calendar and discovered on or about December 11, 2006 (week 50), when reviewing his mail, that he had missed it. He contacted the department to reschedule his appointment and participated in such services on December 20, 2006 (week 51.)

The issue to be decided is whether the claimant failed to attend a required group registration session and, if so, whether there was good cause or an exceptional circumstance justifying that failure.

Wisconsin Admin. Code § DWD 126.02(2) and (3) provide that no claimant may be considered registered for work or eligible for benefits with respect to any week if the claimant has failed to participate in re-employment services without justifiable cause. Justifiable cause for nonattendance at a mandatory re-employment services workshop is established through the "reasonable person" test and includes but it not limited to:

1. Summons to serve as a prospect juror.

2. Enrollment and satisfactory participation in a course of training approved by the department.

3. Partially employed and the hours conflict with the re-employment service.

4. Full time employment or a definite date to return to work full time within 4 weeks.

5. Job interview scheduled at the same time.

6. Circumstances that the department determines are beyond the claimant's control, or a reasonable choice made by the claimant to meet more compelling obligations, i.e., car trouble, child care problems, illness of the claimant or family member.

The claimant's failure to act with due diligence to note the re-employment service workshop on his calendar amounts to carelessness rather than the time conflicts for other necessary activities like those noted above. Although the claimant asserted that he performed his required work searches in that week, that is not material to the issue of his failure to attend the required re-employment workshop. The claimant's reason for failing to attend the workshop does not constitute justifiable cause.

The next issue to be determined is the length of the claimant's suspension of benefits.

Wis. Stat. § 108.04(2)2 states that benefits are allowed only in weeks that a claimant is registered for work. Wisconsin Admin. Code. § 126.02(3) provides that "A claimant shall be considered registered for work if he or she is enrolled in or otherwise complying with department directions concerning other reemployment programs approved by the department for this purpose, or if the claimant is not complying but has justifiable cause for failure to participate under s DWD 126.05."

The department's practice is to suspend in the week the session is missed without justifiable cause. A continuing suspension might be warranted in cases where a claimant refuses to participate. However in this case, the claimant made contact the following week when he became aware that he had missed the session and rescheduled for the first available session thereafter. By doing so, he enrolled in or otherwise complied with the department's reemployment directives. Therefore, the commission reverses with respect to week 50 and limits the suspension to week 49.

The commission therefore finds that in week 49 of 2006, the claimant failed without good cause or exceptional circumstance to attend a required group registration session within the meaning of Wis. Stat. § 108.04(2) and Chapter DWD 126 of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the claimant is ineligible for benefits in week 49 0f 2006. There is no overpayment as a result of this decision.

Dated and mailed May 11, 2007
radkega . urr : 178 : 1 CP 360 CP 380 CP 390

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission does not reverse due to any differing assessment of witness credibility, but as a matter of law.


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