IN RE J. DOE, 07605982MW

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 six months as a seasonal tele-collector for the employer, a utility. The employee's last day of work was August 20, 2007 (week 34).

On August 20, 2007, the employee spoke to her direct supervisor as well as the customer contact center manager about resigning from her position due to her personal circumstances. The employee had recently broken up with her boyfriend. Relations had deteriorated to the point where her former boyfriend had threatened to kill her and her minor son.

The previous Friday, August 17, 2007, three individuals showed up at the employee's house. These individuals were strangers to her. One of them tried to kick the door in. The employee was informed by witnesses that one of them had a gun. The individual at the door made comments to the effect that they had keys to her house and car. However, the employee had changed the keys to her house after she ended the relationship with her boyfriend. The individuals remained at the door shouting obscenities through the door until they were told the police had been called.

On August 20, 2007, the employee discussed the situation with her supervisor, who advised her to make the best decision she could for herself and her son. The employee decided to quit her position and relocate out of state in order to avoid any further contact with her ex-boyfriend or anyone who might be acting on his behalf.

The ALJ considered whether the domestic abuse exception to the general quit disqualification applied to the employee's case. While acknowledging that several aspects of the statute were not met by the employee, he nonetheless found that the exception applied.

The issue for review is whether the employee's quitting to relocate due to the domestic abuse amounted to a quit exception within the meaning of Wis. Stat. § 108.04(7)(s). This subsection provides that an employee may be eligible for benefits if the employee terminates his or her work due to domestic abuse, concerns about personal safety or harassment, or the concerns about the safety or harassment of family members who reside with the employee or other household members. However this subsection requires that before terminating employment because of domestic abuse, the employee must obtain a temporary restraining order or an injunction under s. 813.12, 813.122, 813.123, 813.125 or 813.127 or possess a foreign protection order recognized under s. 813.128 and further demonstrate to the department that the order has been or is reasonably likely to be violated.

The ALJ found that although a restraining order or injunction had not been issued, to deny benefits under this statutory exception would violate the spirit of the law and therefore allowed benefits under the domestic abuse exception.

The department timely petitioned the commission and argues that the relevant subsection is unambiguous and the issuance of a temporary restraining order or an injunction prior to termination must exist before this exception can be applied. Because there is no proof that the employee obtained a temporary restraining order or an injunction under Chapter 813, the department correctly argues that the employee failed to meet the statutory requirements under the domestic abuse exception found at Wis. Stat § 108.04(7)(s).

The final question is whether the overpayment of benefits should be waived.

The ALJ erred when he applied the domestic abuse exception in the absence of any evidence that a temporary restraining order or an injunction issued under Chapter 813 was issued. Therefore, this quit exception cannot be applied to the facts at hand.

The commission concludes that the administrative law judge committed an error of law, and overpayment of any benefits awarded as the result of his decision should be waived as a result.

The commission therefore finds that, in week 34 of 2007, the employee quit her employment with the employer, but not for any other reason constituting an exception to the quit disqualification of Wis. Stat. § 108.04(7)(a).

The commission further finds that, as a result of the appeal tribunal decision, the employee was paid benefits in the amount of $3,920.00, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), but that waiver of recovery of this overpayment of benefits is appropriate pursuant to Wis. Stat. § 108.22(8)(c) because the overpayment was the result of department error and not due to employee fault as defined in Wis. Stat. § 108.04(13)(f).

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 2007 and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the benefits overpayment of $3920.00 to the Unemployment Reserve Fund.

Dated and mailed January 31, 2008
In re J. Doe 07605982MW . urr : 178 : 8 VL 1016.06  BR 335.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission reverses the appeal tribunal decision as a matter of law. Wis. Stat. § 108.04(7)(s) requires that before terminating employment because of domestic abuse, the employee must obtain a temporary restraining order or an injunction under Chapter 813. The facts at hand do not support a conclusion that either a temporary restraining order or an injunction had been obtained through a judicial proceeding pursuant to Chapter 813. The ALJ therefore committed departmental error by misapplying Wis. Stat. § 108.04(7)(s) to the facts at hand. Consequently, the employee's overpayment stemming from the ALJ's decision is waived based upon departmental error and the fact that the employee was paid benefits through no fault of her own.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2008/02/11