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

REBECCA L BRATH, Employee

MORAINE PARK TECHNICAL COLLEGE DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08001832MD


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee has worked for two and one-half years as a workforce project coordinator for the employer, a technical school. She last worked for the employer on February 29, 2008 (week 9), when she was laid off. On March 27 (week 13), she started an unemployment benefit claim, retroactive to week 12, the calendar week ending March 22. At that time, she also requested back benefits for weeks 10 and 11, the calendar weeks ending March 8 and 15, respectively.

The claimant is required to give notice to the department of an intent to activate a benefit claim in order to be eligible for benefits in a week. The claimant was late in reporting for the first two weeks of her unemployment. The employee worked for the employer but off site at Mercury Marine. She had limited presence at the employer's premises. The employee has never been unemployed before and as a result has never claimed benefits before. Therefore, she would be unaware of the notice requirements.

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 employee testified at the hearing that she was sure the employer had the required notices, but she simply did not see them. The only time she went to the employer's location was if she had a meeting or an annual review. Employers are required to post notices as to claiming unemployment benefits. Wis. Admin. Code § 129.01 provides that such notices must be posted at suitable points. Suitable points include bulletin boards, near time clocks and other places where all employees will readily see them.

As previously noted, Wis. Stat. § 129.01 is not an exhaustive list of what constitutes an exceptional circumstance. In this case, absent affirmative evidence that the required notice was posted, and considering the facts that the employee worked off site and had never before claimed benefits, the commission finds that the employee's failure to give notice was due to an exceptional circumstance.

The commission therefore finds that in weeks 10 and 11 the claimant failed to notify the department of an intention to initiate a benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. 129, but that the reasons for such failure constituted exceptional circumstances so as to permit a waiver of the notification requirement, within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in weeks 10 and 11, if she is otherwise qualified.

Dated and mailed July 3, 2008
brathre . urr : 132 : 1 : CP 360

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission has not reversed the ALJ based on witness credibility and demeanor but because it reaches a different legal conclusion than reached by the ALJ based on the employee's undisputed testimony.


 

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uploaded 2008/07/18