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

PATRICK R KAUFMAN, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08602191MW


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 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 claimant worked for about 16 weeks as an estimator and expeditor for an employer, an operator of an environmental services business organized as a limited liability company under ch. 183, Stats. His last day of work was in or about week 16 of 2005, when he was laid off.

Although he claimed benefits for weeks 16 through 40 of 2005, the calendar weeks ending April 16 through October 1, he did not contact the department to initiate his claim for benefits for those weeks until March 13, 2008 (week 11). He did not claim immediately because he believed that, as an independent contractor, he was not eligible for benefits. The employer treated the employee as an independent contractor. The employee was paid with no withholding. The employer issued the employee a 1099. The DWD conducted an audit in January of 2008, and determined that the claimant was an employee of the employer for unemployment contribution purposes. The claimant then initiated a claim for benefits.

The issue presented is whether there the claimant's failure to file a timely application to initiate a claim in weeks 16 through 40 of 2005 was due to an exceptional circumstance.

The employer's treatment for the claimant as an independent contractor led the claimant to believe that he was not eligible for unemployment insurance benefits based on his work for the employer. If not actually, the claimant's circumstances are akin to the employer indirectly persuading the claimant not to initiate a claim for benefits.

The commission therefore finds that in weeks 16 through 40 of 2005 the claimant failed to notify the department of an intention to initiate or to resume a benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129 but that the reason for his failure was due to an exceptional circumstance, so as to permit a waiver of the requirement, within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits in weeks 16 through 40 of 2005, if he is otherwise qualified.

Dated and mailed May 14, 2008
kaufmpa . urr : 132 : 1 : CP 360

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not consult with the ALJ regarding his impressions of witness credibility and demeanor. The claimant's testimony was undisputed. The commission has reached a different legal conclusion, not credibility conclusion, than that reached by the ALJ.


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uploaded 2008/05/27