JAMES MCCOY, Employee

SITE STAFFING INC, Employer

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:

The employee worked for the employer, a temporary placement service, for approximately nine months in a shipping department. His last day of work was December 22, 2006 (week 51).

In November 2006, the employee contacted the employer to inform it that he would be losing his position with this client. On December 21, the employee contacted the employer to explain that his assignment was ending the next day. He requested that he receive another assignment. The employee worked first shift because his children's mother worked third shift and they shared childcare responsibilities. At that time, the employee wanted to continue working first shift. When he talked with the employer's representative later that day, she informed him that she had a position for first shift from 6:00 a.m. until 6:00 p.m. The employee thought that she said third shift from 6:00 p.m. until 6:00 a.m. He informed her that he could not work those hours because he had to watch his three children.

The issue to be decided is whether the employee quit or was discharged in week 51 of 2006.

Based on the above, the employee quit his position when he failed to accept continuing work with the employer. The next issue is whether his reason for quitting falls within any exception permitting the immediate payment of benefits.

The employee refused a first shift job. His reasons for doing so were based on his personal circumstances. However, his situation does not fall within the child care exception used by the ALJ since the employee was not offered work on a different shift but on the same shift he had been working. Neither does his reason for quitting amount to good cause attributable to the employer. The shift was the same that the employee had been working under. Employees are expected to arrange child care so that they can accept full time, first shift work. The employee has offered no other objection to the offer actually made which would fall within another exception to the general quit disqualification.

The next issue to be decided is whether the employer failed to provide correct and complete information requested by the department during a fact-finding investigation

The employer testified that its employee who deals with unemployment disappeared around the time the department was seeking information. She left the state without notice and it has no idea where she is. She left all her work behind. The department contacted the employer prior to the employer learning that the employee was no longer performing her duties.

The statute provides that employer fault will not be found if the failure to participate in the investigation was with good cause. In this case, the employer testified that its employee abandoned her work without notice. These circumstances were not foreseeable. The employer had a contact person who disappeared and left it unaware that the department was trying to contact it. Therefore, the employer had good cause for its failure to provide the necessary information to the department.

The commission therefore finds that in week 51 of 2006, the employee voluntarily terminated his work for the employer, within the meaning of Wis. Stat. § 108.04(7)(a).

The commission further finds that the employer had good cause for its failure to provide correct and complete information requested by the department during a fact-finding investigation, within the meaning of Wis. Stat. § 108.04(13)(c) and (g).

The commission further finds that the employee was paid benefits in weeks 52 of 2006 through week 20 of 2007 in the total amount of $7,207, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he is required to repay such sum to the Unemployment Reserve Fund.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 51 of 2006, and until four weeks have elapsed since the end of the week of quitting and he has earned wages in covered employment performed after the week of quitting equaling at least four times his weekly benefit rate which would have been paid had the quitting not occurred. The employee is required to repay the sum of $7,207.00 to the Unemployment Reserve Fund.

Dated and mailed July 30, 2007
mccoyja2 . urr : 178 : 1    VL 1035  BR 319.4

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission set aside its earlier decision when the employer pointed out an error in the way that the commission read an employer exhibit. After reconsidering the matter, the commission determined to reverse. The commission did not consult with the ALJ regarding witness credibility prior to reversing. The reversal is not due to any differing assessment of witness credibility. The commission reaches a different conclusion when applying the law to essentially the same facts as those found by the ALJ. The employee may have misunderstood the employer's offer of another assignment but he refused that further work for personal reasons which do not fall within any exception which permit the immediate payment of benefits.

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uploaded 2007/07/30