PAMELA W. FOSTER, Employee

J & L FIBER SERVICES INC, 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 is a Canadian citizen. She was hired to work as a logistics specialist for the employer. Her last day of work was on December 21, 2007. The employee relocated to Canada at the end of February of 2008. The employee initiated a benefit claim on April 22, 2008 (week 11).

The issue to be decided is whether the employee's failure to give timely notice of her unemployment to the department was due to exceptional circumstances which would justify waiving the notice requirement.

The employee did not timely file because she was unaware of the workings of the Wisconsin Unemployment Insurance program because she is a Canadian citizen. The employee had to return to Canada following the expiration of her work visa. The employer did have a poster in a lunchroom. However, the employee never frequented the lunchroom. The employee became aware of her potential eligibility for Wisconsin Unemployment Insurance benefits when she went to Canadian Unemployment Services.

The notice requirement can be waived if exceptional circumstance exist. There are five listed exceptional circumstances but exceptional circumstances are not limited to those specifically set forth in Wis. Admin. Code § DWD 129.01(4). One such exception is if the claimant failed to give notice because the claimant was not aware of the duty to notify the department and the claimant's most recent employer failed to post or maintain any notice as to claiming unemployment benefits.

The employer did post the required notice. However, the employee never saw the notice. Further, even if the employee had seen the poster, the employee was not aware, as a Canadian citizen, that she would be entitled to UI benefits from Wisconsin.

As previously noted, Wis. Admin. Code § 129.01 is not an exhaustive list of what constitutes an exceptional circumstance. In this case, considering the facts that the employee never saw the poster and as a Canadian citizen was not aware of her potential eligibility for Wisconsin UI benefits, the commission finds her failure to give notice was due to an exceptional circumstance within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 52 of 2007, and in weeks 1 though 10 of 2008, if she is otherwise qualified.

Dated and mailed July 3, 2008
fostepa . urr : 132 : 1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission has not reversed the ALJ based on credibility but because it reached a different legal conclusion than did the ALJ. In addition, the parties appeared by telephone. As part of its review the commission listened to the digital recording of the hearing.

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uploaded 2008/07/18