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

DANIEL J FORSYTHE, Employee

A LINE ASPHALT STRIPING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08600030MW


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 by the department. The commission remanded for further hearing which was held on March 11, 2008.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the original hearing and the remand hearing. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue to be decided is whether the claimant was able to work and available for work in the claimant's labor market beginning in week 47 of 2007.

The claimant has worked for approximately three years as a concrete worker for the employer, a company dealing with asphalt. His work for the employer is seasonal. When working for the employer, he works most of his hours on the weekends and early mornings or late nights during the week.

During weeks 47 through 51 of 2007, the claimant was a full-time student. Other than his scheduled classes, the claimant did not have any restrictions on his ability to work or his availability to work. During week 52 of 2007 through week 2 of 2008, the claimant did not have any restrictions on his ability to work or his availability to work. The department waived the claimant's work search requirement for weeks 47 of 2007 through week 3 of 2008. Beginning in week 4 of 2008 the employee returned to school.

Given the employee's class schedule in weeks 47 through 51 of 2007, and beginning in week 4 of 2008, he was available for 35 to 40 percent of suitable full-time work in his labor market.

The initial issue to be decided is whether the employee was available for work in weeks 47 through 51 of 2007, and beginning in week 4 of 2008.

Wisconsin Statute § 108.04 (2)(a) provides that a claimant is eligible for benefits in any week in which no wages are earned only if the claimant is able to work and available for work. Chapter DWD 128 of the Wisconsin Administrative Code implements the statutes and provides that a claimant with a controllable work restriction will be considered available to work if the claimant is available to perform at least 50 percent of the suitable full-time work opportunities in his or her labor market. Student status is a controllable restriction.

While attending classes the employee was not available for at least 50 percent of suitable full-time opportunities for work in his labor market. The employee is therefore ineligible for benefits during those weeks.

The commission therefore finds that in weeks 47 though 51 of 2007, and beginning in week 4 of 2008, the employee was not available for work within the meaning of Wis. Stat. § 108.04(2)(a).

The commission further finds that in weeks 52 of 2007 through week 3 of 2008, the employee was available for work within the meaning of Wis. Stat. § 108.04(2)(a).

The commission further finds that the employee was paid benefits in the amount of $3,084.00 for weeks 47 through 51 of 2007, and weeks 4 though 10 of 2008, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from departmental error. Specifically, the ALJ held that because the employee's work search was waived the employee had good cause to restrict his availability for work. The ALJ's reasoning is erroneous. The able and available and work search requirement are separate, independent requirements. A claimant whose work search has been waived still must be able to work and available for work. The fact that the work search requirement has been waived does not provide good cause for restricting one's availability for work.

The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), but the overpayment was the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in weeks 47 through 51 of 2007, and beginning in week 4 of 2008. The employee is not required to repay $3,084 in unemployment benefits. The employer's account will be credited with the overpaid amount.

Dated and mailed March 21, 2008
forsyda . urr : 132 : 1 : AA 205 BR 335.01

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


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