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

JOSEPH A WILLERT, Employee

MID STATES EXPRESS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08200567EC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits as of week 2 of 2008 and thereafter, if he is otherwise qualified.

Dated and mailed June 26, 2008
willejo . usd : 178 : 1 : AA 130 : PC 714.11

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee lost his license due to his own fault and offers a computer printout which shows that the employee pled no contest to second offense OWI.

The ALJ found that the employee's license was suspended, but that the employee's fault in that suspension was not established. Unless the license suspension was due to the employee's fault, he is eligible for unemployment benefits. In this case, the employee did not admit the conduct and testified that he was contesting the charges. The employer had no independent evidence that the employee was intoxicated. Therefore the record offers no non-hearsay evidence on which to base a finding of employee fault, beyond the charge itself, which is insufficient. The employer has offered a CCAP report showing that after the hearing the employee pled no contest to second offense OWI. However, a no contest plea is not an admission of guilt. Moreover, the commission does not accept CCAP as evidence of an issue.

The employer asks in its petition what it could have done to prove employee fault. It might have subpoenaed the arresting officer. The commission understands that this is a frustrating situation for an employer. However, it must apply the law as written. Barring an employee admission or other non-hearsay evidence of fault, the commission has no basis for finding that the employee was at fault for the loss of his license.

cc: Mid States Express (Hammond, Wisconsin)


 

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