CHRISTOPHER R HARRISON, Employee

J F MENZIA AND SONS LLC, Employer

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 was laid off on December 21, 2007. At that time the employer discussed with the employee whether he would be joining the employer in New Jersey beginning January 6, 2008, where work was to be done for about four weeks. The employee indicated he had to check with his wife. The employee testified that on December 29, 2007, he informed the employer that he could not go to New Jersey. The employee did not go to New Jersey.

On January 6, 7, 8, and 9, 2008, the shop foreman called the employee but did not reach him. On January 10, shop foreman stopped by the employee's home but no one answered the door. On January 10, the employee called the shop foreman and notified the shop foreman that he was having family problems and would call the employer later. The shop foreman assumed that the employee would report for work when his family problems were resolved. The employee did not thereafter report for work or make contact with the shop foreman or a supervisor.

The initial issue to be decided is whether the employer discharged the employee or the employee quit.

As a general rule, a worker who is laid off on an indefinite basis no longer has an employment relationship with the employer. A. O. Smith Corporation v. DILHR, 88 Wis. 2d 262, 266, 276 N.W.2d 279 (1979). However, when there is credible evidence that at the time of layoff there exists an assurance, express or clearly implied by circumstances, that work will be resumed at an ascertainable time in the not too distant future, the employment relationship continues. Id. at 267. In this case, the employee was not on an indefinite layoff. On December 21, the employee was aware that work would be available on January 6. Therefore, the employment relationship continued after December 21, 2007. The employee quit when he failed to make contact with the employer after January 10, 2008 (week 2).

The next issue to be decided is whether the employee quit his employment for any reason that allows immediate benefit payment.

The employee quit his employment when he failed to contact the employer after January 10, 2008. The employee has offered no reasonable explanation for failing to contact the employer. The employee did not establish that he quit his employment for any reason that permits immediate benefit payment.

The commission therefore finds that in week 2 of 2008, the employee voluntarily terminated his employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.

The commission further finds that the employee was paid benefits in the amount of $7,455.00 for weeks 4 through 24 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 the commission's reversal of the appeal tribunal decision. The ALJ found that the employment relationship ended because the employer laid off or discharged the employee on December 21, 2007. The ALJ made a factual finding that the employer offered the employee work in New Jersey on December 29, 2007. However, per the employee's testimony, the offer of work in New Jersey was made on the employee's last day of work, December 21, 2007. Therefore, the employee was not on an indefinite layoff and was not discharged by the employer on December 21, 2007. The overpayment is this case was due to erroneous findings made by the ALJ.

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), the overpayment was the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 2 of 2008, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $7,455.00 to the Unemployment Reserve Fund. The employer's account will be credited the overpaid amount.

Dated and mailed July 3, 2008
harrich . urr : 132 : 1 : VL 1007 ; BR 335. 01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he did not resolve the case based on credibility but on the legal conclusion that the employee was laid off because of a lack of work. For reasons set forth above, the commission has reversed that legal conclusion.

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uploaded 2008/07/18