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

STEVIE WHITE, Employee

MARRIOTT RESIDENCE INN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603570MW


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

An initial determination adverse to the employer was issued on February 16, 2007. The employer timely appealed, and a hearing was scheduled for March 27, 2007. The employee failed to appear at the hearing and, based solely on the employer's testimony, the appeal tribunal reversed the initial determination and denied benefits. The employee submitted an explanation for his failure to appeal, and a hearing was scheduled for May 10, 2007, on the procedural issue. The employee failed to appear at the procedural hearing. The employee again submitted an explanation for his failure to appear, and a second procedural hearing was held on June 21, 2007.

The issue to be resolved is whether the employee's failure to appear at the May 10, 2007, hearing was for good cause.

The employee failed to appear at the May 10, 2007, hearing because he was incarcerated due to unpaid parking tickets. The commission has held that good cause for an employee's failure to appear at a hearing is not present if the employee voluntarily engaged in conduct which he was aware could result in his arrest and incarceration, and this incarceration then prevented him from attending the hearing. See, Nelson v. Waukesha Memorial Hospital Inc. (LIRC, Feb. 28, 2006), citing Schuricht v. Haluska Company, UI Hearing No. 89-401239AP (LIRC Oct. 16, 1990) and Walls v. Cornwell Personnel Associates, Ltd., UI Hearing No. 05601974MW (LIRC June 30, 2005), aff'd sub nom., Walls v. LIRC and Cornwell Personnel Associates, Ltd., Case No. 05-CV-006013 (Wis. Cir. Ct. Milwaukee Co. January 31, 2006). In Nelson, the employee missed her hearing because she was incarcerated for having consumed alcohol in violation of her probation agreement. In Schuricht, the employee was arrested outside of the hearing room because, in a lawsuit involving the employer, he had been found in contempt of court for refusing to comply with a court order, and a bench warrant had been issued for his arrest. In Walls, the employee was incarcerated for failing to attend a program which was required as a condition of a personal recognizance bond.

In the instant case, the employee was incarcerated due to unpaid parking tickets, which the employee contended he could not afford to pay after he lost his job. The employee received the parking tickets due to his own fault and it was his responsibility to pay them. However, unlike the employees in the cases cited above, the employee did not engage in any conduct after the hearing date was scheduled which he should have realized would result in his incarceration and which he could, therefore, have avoided. The commission believes that it strains the concept of foreseeability to expect the employee to have realized that failure to pay the tickets prior to the hearing could lead to his incarceration and ultimately cause him to miss the hearing.

The record indicates that, while incarcerated, the employee was unable to contact the hearing office to request a postponement. Although the employee was in contact with his mother, the employee's mother is elderly and has comprehension problems which the employee reasonably concluded would make it difficult for her to convey information to the department on his behalf. The employee had no other direct contact with others during his incarceration.

The commission, therefore, finds that the employee failed to appear at the hearing scheduled for May 10, 2007, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded for a hearing and decision on the question of whether the employee's failure to appear at the March 27, 2007, was with good cause and, provisionally, on the merits of the case.

Dated and mailed October 26, 2007
whitest . urr : 164 : 1 PC 712.6  PC 712.5

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The hearing was conducted by telephone, and the administrative law judge was not able to impart any demeanor impressions that affected his decision.

 

cc: Stevie White


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