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

JAY T WALLS, Employee

BREADSMITH INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603540MW


On May 25, 2007, the Department of Workforce Development issued an initial determination which held that the employee's employment was terminated because a license necessary for the employee to perform his customary work for the employer was revoked due to the employee's fault. The employee filed a timely request for hearing on the adverse determination, and hearing was held on June 27, 2007 in Milwaukee, Wisconsin before a department administrative law judge. On June 29, 2007, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the record in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked a little over a year as the general manager for the employer, a retail/wholesale bakery. The employer discharged the employee on April 13, 2007 (week 15) after learning that the employee was not immediately going to be able to regain a suspended driver's license. The commission concludes that the employee needed the license in order to perform his customary work for the employee, within the meaning of Wis. Stat. § 108.04(1)(f), and so reverses the appeal tribunal decision.

The employee's job duties as a general manager were primarily to assure that all the necessary work was completed. At times, this required him to pick up supplies and deliver products to customers. When he was hired by the employer, the employee had a valid driver's license. Around late February of 2007, the employee told the employer that his driver's license had been revoked. The employer discussed with the employee his plan for reinstating his driver's license and allowed him to keep working, on the assumption that the employee soon would be regaining his license. On April 6, 2007, the employer told the employee t4hat he needed to provide confirmation that he had a valid driver's license by April 13, 2007. On April 13, 2007 (week 15), the employer discharged the employee because he still did not have a valid driver's license. During the period that the employee worked for the employer without having a valid driver's license, he fulfilled his job duties that required travel by having his while drive him or by assigning other employees to do the pickups or deliveries.

Wisconsin Stat. § 108.04(1)(f) states, in relevant part:

If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first.

In this case, the employee's customary work for the employer was to manage the bakery, making sure that all necessary work was completed. This required him at times to pick up supplies and delivery products, and one needs a driver's license to do so. The employee must be considered at fault for the loss of his license, finally, as that loss was due to the employee's failure to have satisfied a judgment against him resulting from a previous automobile accident.

The commission therefore finds that, in week 15 of 2007, the employee's employment was terminated by the employer because a license issued by a government agency that was required by law in order to perform the employee's customary work for the employer, had been suspended, revoked, or not renewed due to the employee's fault, within the meaning of Wis. Stat. § 108.04(1)(f). The commission also finds that the employee was paid benefits totaling $5,538.00 for weeks 16 through 20 ($1,745.00) and 29 through 39 ($3,793.00) of 2007, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission finds, finally, that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayments were the result of departmental errors and did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f). The $1,745.00 overpayment was due to an error in the issuance of the original initial determination in the case. Specifically, the original determination treated week 8 of 2007 as the initial week of disqualification under Wis. Stat. § 108.04(1)(f). The initial week of disqualification in fact was week 15 of 2007. The remaining $3,793.00 was paid as a result of the appeal tribunal's reversal of the disqualifying initial determination. The appeal tribunal's reasoning in finding the employee eligible for benefits was a misinterpretation of the law within the meaning of Wis. Stat. § 108.02(10e), however. Specifically, if one's customary work requires one to pick up supplies and make deliveries, then one is required to have a driver's license and may not avoid a Wis. Stat. § 108.04(1)(f) disqualification by having others perform that work on one's behalf.

DECISION

The appeal tribunal decision is reversed. Accordingly, if the employer is the only employer in the base period, benefits are denied beginning in week 15 of 2007 and until the license is reissued or renewed. (1)   If there are other employers in the base period, benefits are denied beginning in week 15 of 2007, and for a period of up to five weeks thereafter, or until the license is reissued or renewed, whichever occurs first. Thereafter, benefits are allowed, if there are other employers in the base period and the employee is otherwise qualified.

Dated and mailed October 18, 2007
wallsja . urr : 105 : 1  AA 130  BR 335.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The wages paid by this employer shall be excluded from the employee's base period wages for purposes of benefit entitlement while the suspension, revocation or nonrenewal is in effect. Any benefits paid for later weeks, based on the wages excluded, while the suspension, revocation, or nonrenewal remains in effect, that would otherwise be chargeable to the employer's account, shall be charged either to the fund's balancing or administrative accounts.

The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision. The commission found the same facts as did the administrative law judge, so the reversal is not based on a differing credibility assessment from that made by the administrative law judge. Rather, the reversal is as a matter of law.



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Footnotes:

(1)( Back ) The commission's decision assumes that, as of week 39 of 2007, the employee had not yet regained his driver's license. If this assumption is incorrect, it is the employee's obligation to submit documentary evidence to that effect to the commission right away.

 


uploaded 2007/10/22