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

SHARI L LARSEN, Employee

ANDIS TOOL CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07605567RC


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

The employee has worked for approximately one and one-half years as an assembler for the employer, a tool manufacturer. The employee was on a leave of absence from July 23, 2007 to August 13, 2007 (weeks 30 through 32 of 2007).

The issue to be decided is whether the employee was on family or medical leave within the meaning of Wis. Stat. § 103.10 or P.L. 103-3.

Effective July 23, 2007, the employee was off work due to a non-work related back injury. The employee had a 20-pound lifting restriction. The employer indicated that she could not work for the employer with restrictions. The employee could have performed her normal work duties with a 20-pound lifting restriction. The employee returned to work on August 13, 2007, when she provided the employer with information from her doctor that showed she no longer had restrictions on her ability to work.

The only issue noticed for hearing in this case is whether the employee was on a family or medical leave pursuant to Wis. Stat. § 108.04(1)(b)3 or P. L. 103-3. That is, whether the employee was on family or medical leave under the Federal Family and Medical Leave Act (FMLA), or the Wisconsin Family and Medical Leave Act (WFMLA).

The employer did not appear at the hearing. The record before the commission does not establish that the employee was on a leave that constituted either FMLA leave or WFMLA leave. In order for either act to apply certain requirements must be met. For example, the acts only apply to employers who employ a certain number of employees. In addition, to be eligible for FMLA or WFMLA leave an employee must work a certain number of hours, weeks, or months for the employer. Further, the record does not indicate that the employer even designated the employee's time off work as qualifying FMLA or WFMLA leave. That the employee is off work due to an injury does not mean that the time off work was considered or can be considered FMLA or WFMLA leave.

The commission therefore finds that beginning in week 30 of 2007 the employee was not on family or medical leave within the meaning of Wis. Stat. § 103.10 or P.L. 103-3.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 30 of 2007, if she is otherwise qualified.

Dated and mailed November 16, 2007
larsesh . urr : 132 : 1 : AA 127

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ. The employee's testimony was undisputed.


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uploaded 2007/11/28