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

PAUL J GATTEN, Employee

AON SERVICE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201780EC


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 worked about six years and four months as an insurance sales agent for the employer, an insurance business. His last day of work was May 31, 2007 (week 22), when his employment was terminated.

The issue to be decided is whether the employee's employment was terminated because of the loss, suspension, or nonrenewal, due to the employee's own fault, of a license that the employee was required to have in order to perform that work.

In order to perform his job duties, the employee was required to be licensed by a state agency. The employee thought that his license was up for renewal in May of 2008. However, his license renewal date was May 31, 2007. In order to maintain his license, the employee was required to attend 24 hours of continuing education. The employee did not complete the continuing education courses before his license lapsed on May 31, 2007. Because the employee was not licensed to sell insurance policies, the employer terminated his employment.

Wisconsin Statute. § 108.04 (1)(f) provides the following:

"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. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under s. 108.06(1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect."

In this case, the employee failed to take the steps necessary to ensure that his license was renewed as of May 31, 2007. It was his responsibility to attend the continuing education classes in a timely manner so as to maintain his licensure. His failure to do so was his own fault. Therefore, the above statute applies.

The above statute removes wages paid by the employer from the employee's base period until the license is reinstated or renewed. The employee would be eligible for the payment of benefits after five weeks had elapsed after the week of the termination if the employee had base period wages from other employment. Since the employee did not have base period wages from other employment, the payment of benefits remained suspended until his license was reinstated on September 13, 2007 (week 37).

Wis. Stat. § 108.04(13)(c) and (e) provide:

(c) If an employer, after notice of a benefit claim, fails to file an objection to the claim under s. 108.09(1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer. If, during the period beginning on January 1, 2006, and ending on June 28, 2008, an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, charges to the employer's account for benefits paid prior to the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, prior to the end of the week in which an appeal tribunal decision is issued regarding the matter, are not affected by the redetermination or decision, except as provided in Par. (g). If benefits are erroneously paid because the employer and the employee are at fault, the department shall charge the employer for the benefits and proceed to create an overpayment under s. 108.22(8)(a). If benefits are erroneously paid without fault on the part of the employer, regardless of whether the employee is at fault, the department shall charge the benefits as provided in par. (d), unless par. (e) applies, and proceed to create an overpayment under s. 108.22(8)(a). If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under s. 108.22(8), the recovery does not affect benefit charges made under this paragraph.

When the employee initiated his claim for unemployment benefits on June 22, 2007 (week 25), he reported to the department that he had been discharged. Because the department did not have the wage information on file to set up a benefit year for the employee, the department sent forms that asked for wage information to the employee and the employer. The employee returned the form with wage information on July 2, 2007. The employer failed to return the form and did not provide any wage information to the department. Based upon the information that the employee provided, the department set up a benefit year for the employee and paid unemployment benefits to him in the amount of $846. The payment of benefits was on July 12, 2007 (week 28).

On July 26, 2007, the department issued a determination which found that the wages paid by the employer were not considered "covered" by the unemployment insurance law because the employee was paid solely by way of commission. The wages paid by the employer were removed from the employee's base period and the employee was found to be ineligible for unemployment benefits. The employee filed an appeal to that determination and on August 29, 2007, an appeal tribunal decision was issued which reversed the determination, finding that the amounts paid to the employee were wages for unemployment insurance benefit purposes. At that time, the issue regarding the nature of the separation of employment became relevant. The department investigated the separation issue and issued the determination that was the subject of the current appeal.

The payment of benefits was not due to the employee's fault as he had timely responded with accurate information to the department's inquiries. The employer was at fault for not providing the wage information and not raising the question regarding eligibility in a timely manner. The department was not at fault, as it acted upon information at the time that it was provided.

Under the circumstances, the commission concludes that benefits paid to the employee before the issuance of the determination of July 26, 2007 need not be repaid under see. 108.04(13)(c), Stats.

The commission finds that the employee was erroneously paid benefits in the amount of $806.00 for weeks 21 through 23 of 2003, due to the employer's fault as defined in Wis. Stat. § 108.04(13)(f).

The commission further finds that the aforementioned benefits remain paid to the employee and need not be repaid by the employee to the department, and that the employer remains charged for such erroneously paid benefits pursuant to Wis. Stat. § 108.04(13)(c).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, benefits are denied beginning in week 22 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. There is no overpayment established in this case. The employer remains charged for the erroneously paid benefits in the amount of $846.00.

Dated and mailed January 16, 2008
gattepa . urr : 145 : 1 AA 130  BR 319.1

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not reverse the ALJ's decision because it reached a different determination as to witness credibility and demeanor. Rather, the commission reversed the ALJ's decision as a matter of law.

cc:
AON Service Corporation
Attorney Daniel J. LaRocque

 

[Ed. Note: This decision is reproduced here as affected by a corrective amendment issued on February 8, 2008.]


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