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

KERWIN N MAY, Employee

ABC EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07001688MD



O R D E R

Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the appeal tribunal decision issued on April 13, 2007, and remands this matter for a hearing and decision on whether the employer had good cause for failing to appear at the hearing, and for such further hearings and decisions as may be appropriate.

Dated and mailed June 29, 2007
maykerw . usd : 132 : 1   PC 712.9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In this case, the employer/appellant requested a postponement before the hearing because a witness would be unavailable. The request was denied because the employer failed to give the hearing office dates to avoid before the notice was sent out. The employer did not appear at the hearing. The ALJ dismissed. Thereafter the employer requested a new hearing stating its witness had been unavailable. The ALJ, without holding a hearing, found the employer's explanation did not constitute good cause for its nonappearance.

The commission remands this matter because it concludes that Wis. Stat. § 108.09(4)(d), requires the hearing office to hold a hearing on whether the appellant's explanation for failing to appear at the hearing constitutes good cause for nonappearance.

In 1994, Wisconsin Statute § 108.09(4)(e), provided as follows:

A party, having failed to appear at a hearing may transmit a written excuse to the appeal tribunal which is postmarked or received by the department within 21 days after the decision was mailed to the party's last-known address. If the excuse establishes probable good cause for nonappearance, the appeal tribunal may thereafter set aside its decision and afford further opportunity to be heard, either before the same or another appeal tribunal. If the excuse does not establish probable good cause for nonappearance, the appeal tribunal may:

1. Set aside the decision and reinstate the original decision, stating the reason why the party's excuse does not establish probable good cause for nonappearance;

2. Set aside the decision and issue another decision stating the reason why the party's excuse does not establish probable good cause for nonappearance, which may include findings of fact or law at issue based upon the testimony or other evidence presented at the hearing; or

3. Issue an amended decision stating the reason why the party's excuse does not establish probable good cause for nonappearance.

1995 Wisconsin Act 118 repealed and recreated Wis. Stat. § § 108.09(4)(c) to (e) of the statutes. The statutory amendment resulted in the language set forth below and is the language of the statute to this day:

(d) Appellant's failure to appear:

1. If the appellant fails to appear at a hearing held under this section but the respondent is present, and due notice of the hearing was mailed to appellant's last-known address, the appeal tribunal shall issue a decision dismissing the request for hearing unless subd. 2 applies.

2. If the appellant delivers or transmits a written explanation for nonappearance to the department which is received before a decision under subd. 1. is mailed, the department may so notify each party and schedule a hearing concerning whether there was good cause for the appellant's nonappearance. The department may also provisionally schedule a hearing for further testimony concerning any matter in the determination. If, after hearing testimony, the appeal tribunal finds that the appellant's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. If, after hearing testimony, the appeal tribunal finds that the appellant's explanation establishes good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under sub. (3)(b) after conducting a hearing concerning any matter in the determination.

(Emphasis added.) The same language is used for a respondent's failure to appear. Wis. Stat. § 108.09(4)(e).

A number of ALJs consider the use of the word "may" in Wis. Stat. § 108.09(4)(d) and (e) gives them discretion either to hold a hearing on the good cause issue or not to hold a hearing. The commission finds that the use of the word "may" simply sets forth different procedures for holding hearings and issuing decisions. For example, Wis. Stat. § 108.09(4)(d) and (e), gives the hearing office a choice of only scheduling a hearing on the good cause issue, or scheduling a hearing on the good cause and on the merits.

The department's explanation for the change was set forth in the Plain Language Summary of the Unemployment Compensation Advisory Council Agreed Upon Bill:

Amend to eliminate the bifurcated process of first making a probable good cause finding and then, if probable good cause is found, holding a good cause hearing in cases where a party files a late appeal or fails to appear at the hearing. A good cause hearing will now be held in all such cases.

REASON: Current statutes on 'failure to file a timely appeal' and 'failure to appear' establish a procedure by which the department first determines whether there is probable good cause and then, if there is, schedule a hearing to determine whether there is good cause. U.S. Department of Labor used to give a reimbursable credit for each decision (probable good cause and good cause). They have since said that a reimbursable credit is only available if a hearing is held. They clearly believe that full hearing should take place before such issues are resolved. The statutory language needs to be amended to reflect this change.

The department specifically amended Wis. Stat. § 108.09(4)(d) and (e), along with the late appeal for hearing section Wis. Stat. § 108.09(4)(c), to require good cause hearings in every case.

2003 Wisconsin Act 197 amended Wis. Stat. § 108.09(4)(c), the section that deals with the handling of explanations for filing a late request for hearing. The amendment allowed the ALJ to dismiss without a hearing if the explanation for filing a late appeal, taken as true, did not constitute a reason beyond the appellant's control. (1)   There was no similar amendment to Wis. Stat. § 108.09(4)(d) and (e).

If the department wants to have discretion in determining whether to hold a good cause hearing in non-appearance cases, it could propose an amendment to Wis. Stat. § 108.09(4)(d) and (e) as it did in 2003 for the late request for hearing provision.



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Footnotes:

(1)( Back ) The department's explanation for the "technical" change was that, "Former law did not specify the circumstances under which a hearing on a late appeal would be held. New law states that an administrative law judge may dismiss the appeal without a hearing if the reasons for being late, when considered most favorably to the appellant, were not beyond the party's control." Based on the department's explanation for the 1995 amendment, former law specified that a hearing was to be held under all circumstances. The 2003 amendment set forth when a hearing would not be required. In the commission's view the Summary of 2003 changes, more accurately explains the change: "Amends the late appeal provision to clarify that the department is not required to hold a hearing on whether there was good cause for the late appeal." The July 22, 2003, UIAC minutes contain the following explanation for the change:

Agenda Item 7. Department Law Change Proposals, item 7 e. Clarifying Amendments to Late Appeal Statute. Marissa Santiago, Legal Assistant, Bureau of Legal Affairs, presented this change. This change would clarify 108.09(4)(c) the late appeals statute so that it clearly states that an Administrative Law Judge may hold a hearing on whether an appellant's reason for filing a late appeal were beyond the party's control. Current language seems to imply that a hearing will be held for all such late appeals. That is not current practice and we want to clearly codify our current procedures. This change will allow the appellant to know what actions will be taken if there is no hearing and what the basis was for not conducting a hearing. A complete law change analysis (gray, D27-03) was included in the Council's meeting packet.


uploaded 2007/07/05