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

SUZANNE M CARLSON, Employee

CLEAN POWER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08605129MW


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 worked for about eight months as a vacuumer for the employer, an operator of a commercial cleaning business. Her last day of work was on or about June 10, 2008 (week 24), when she terminated her employment.

The employee worked part-time for the employer, approximately 15 hours per week, usually from about 5:30 p.m. until about 8:00 p.m. Her husband drove her to work. While working for the employer, the employee was employed in another job as a metal polisher on a full-time basis. Her last day of work with that employer was June 27, 2008 (week 26); when she was laid off for one week, week 27 of 2008, the calendar week ending July 5. She terminated her employment with the employer effective with her last day on June 10 because her husband could no longer drive due to an illness.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

As a general rule, workers who quit are ineligible for benefits pursuant to Wis. Stat. § 108.04(7)(a) until they requalify. The statute contains a number of exceptions to this rule.

One potential exception is Wis. Stat. § 108.04(7)(o) which allows benefits to an employee who terminates her work in one of two concurrently held positions, at least one of which consists of more than 30 hours per week, if the employee terminates her work before receiving notice of termination from a position which consists of more than 30 hours per week. The commission has interpreted the word "termination" to be exactly that, a complete termination of the other work relationship and has consistently declined to apply this exception in the case of a temporary layoff situation. See Delzer v. Wal-Mart Associates Inc. (LIRC May 6, 1999), and the cases cited therein.

The commission therefore finds that in week 24 of 2008, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a), but not for a reason constituting an exception to that section.

The commission further finds that the employee was paid benefits of $243.00 in week 27 of 2008, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).

A secondary issue presented in this case is whether the overpayment of benefits to the employee was because of departmental error or was partially or wholly because of the employee's actions, and whether the department is required to waive recovery of any portion of the overpayment.

The overpayment in this case was because the ALJ disregarded the commission's longstanding interpretation of Wis. Stat. § 108.04(7)(o), and this was an error 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 was the result of a departmental error, and the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f).

DECISION

The decision of the administrative law judge is reversed. Accordingly the employee is ineligible for benefits beginning in week 24 of 2008, and until four weeks have elapsed since the end of the week of quitting and the employee has earned wages in covered employment performed after the week of quitting equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $243.00 to the Unemployment Reserve Fund.

Dated and mailed October 16, 2008
carlssu . urr : 145 : 1    VL 1020   BR 335.01

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing his decision. The commission did not reverse the ALJ based on a differing assessment of witness credibility and demeanor. Rather, the commission reversed the ALJ's decision as a matter of law.

cc: Daniel J. Larocque


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