JOY M PETERSON, Employee

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:

On February 16, 2007 (week 7) the employee filed claim certifications for weeks ending January 20, 2007 and February 3, 2007 (weeks 3 through 5). She had filed timely claim certifications for the previous two weeks but stopped claiming beginning with week 3 because she received a check for that week from the employer and thought she was ineligible. However, the employer later revoked the check as paid in error.

The Wisconsin unemployment law, including statutes and related rules in the Wisconsin Administrative Code, provides that a weekly claim certification must be filed within 14 days after the end of the week for which it was filed. The rules provide further that if a claim certification is not filed for one or more weeks, an additional initial claim must be filed. Here the employee failed to file a claim for weeks 3, 4 and 5 until February 16, 2007.

However, in specific but limited "exceptional circumstances" the department rules in the Wisconsin Administrative Code permit waiver of the timely filing requirement.

The issue to be decided is whether the employee's failure to file a timely claim certification for weeks 3 and 4 and to file a timely additional claim for week 5 can be waived. The same waiver provision applies to both.

Among the circumstances permitting waiver in rule DWD 129.01 (4) of the administrative code is (b) failure due to "action by an employer, in any manner, directly or indirectly, instructing, warning, or persuading the claimant not to file a benefit claim."

In this case, the employer's payment error in week 3 persuaded the employee not to file a claim for that week as well as weeks 4 and 5. The employee did not file for benefits during weeks 4 and 5 because she was uncertain as to whether the employer would continue to send her checks. The employee needed a reasonable amount of time to resolve the employer's error, given that she had to move to another state, start a new job and had recently begun to suffer from a medical condition.

The commission therefore finds that the employee failed to file timely claim certifications and/or initiate or reactivate for weeks 3, 4 and 5 of 2007, within the meaning of Wis. Stat. § 108.08(1) and chapter DWD 129 of the Wisconsin Administrative Code, but that the reason for the failure to file for those weeks constitutes an exceptional circumstance permitting waiver of the filing requirement, within the meaning of that section and chapter.

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is eligible for benefits in weeks 3, 4 and 5 of 2007, if otherwise qualified.

Dated and mailed June 22, 2007
peterjo . urr : 145 : 1 CP 360

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a different assessment of witness credibility, and the employee's testimony was not disputed. The commission reverses the ALJ's decision because it reached a different legal conclusion than the ALJ did with respects to weeks 4 and 5 of 2007.

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uploaded 2007/06/25