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

DATRWAN HARRIS, Employee

UNITED MAILING SERIVCES INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08003171MD


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 approximately 8 months as a route driver for the employer, a pre-sort mail center. His duties consisted of driving a route to pick up mail and then sorting the mail afterwards at the employer's facility. The employer testified that it did not have any full-time work in automation alone.

The employer's policies provide that if a worker receives a driving under the influence conviction or similar "reckless" type of ticket, 6 points would be assessed and the employer "may" terminate the employment.

The employee had a valid driver's license but on May 3, 2008 (week 18), during his free time and in his own personal vehicle, he was arrested for driving under the influence. The employee notified the employer of the situation and the employee was allowed to work until his court hearing.

On June 20, 2008, the employee was convicted of an OWI and lost his license. He notified the employer and was discharged on June 23, 2008 (week 26) because he was unable to fulfill his duties. The employee responded that he thought he could work part-time but no such position was offered to the employee. There was no discussion about an occupational driver's license and the employee had not applied for one as of June 23, 2008. The employee sought to be hired by the employer in a part-time capacity just as an automation worker but the employer did not do so. The employee was provided a discharge notice that provided,

Datrwan lost his license due to an OWI conviction on 6-20-08. Datrwan was hired at UMS to be a driver, and with this can no longer fulfill those duties. Our insurance carrier will not support drivers with those specific violations. He is being released from employment with United Mailing Services, Inc. effective immediately.

The employee applied for an occupational license after his termination. He also filed a claim for unemployment insurance benefits. Following the appeal tribunal decision, which allowed benefits, departmental records reflect that, for the calendar weeks ending July 5 through November 22, 2008 (weeks 27 - 47), the employee received "regular" unemployment benefits in the amount of $3,482 and emergency unemployment benefits of $603, totaling $4,085.

Wis. Stat. § 108.04(1)(f) provides,

(f) If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under s. 108.06 (1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect. This paragraph does not preclude an employee from establishing a benefit year using the wages excluded under this paragraph if the employee qualifies to establish a benefit year under s. 108.06 (2) (a). The department shall charge to the fund's balancing account any benefits otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 from which base period wages are excluded under this paragraph.

The issue in the case is whether the employee's employment was suspended or terminated because of the loss, suspension, or nonrenewal, due to the employee's own fault, of a license the employee was required to have in order to perform that work.

The ALJ found that the employer terminated the employee's employment because:

1. the employee lost his license, and

2. the employer's insurance carrier would "not support" driver's with specific violations.

In allowing benefits, the appeal tribunal rationalized that the employee could have performed his duties with an occupational license and that the employee could have met the occupational license requirement. Yet, it doesn't matter what "could have been done" but, instead, "what was actually done" matters. Specifically, in Zindler v. Cintas Sales Corp., UI Dec. Hearing No. 97608037WK (LIRC, April 10, 1998), the commission denied benefits under the loss of license provision where the claimant's hours of driving availability did not coincide with the necessary driving hours; in Zindler, even though the employee could have sought to change his occupational driving hours, he did not do so.

Using a consistent approach, as of June 23, 2008 the employee needed a valid driver's license to perform his route position for the employer. He did not have a valid license, occupational or otherwise. His employment was therefore terminated. The fact that the employer's insurance may not have "supported" him is not material - it never got to that point. Thus, the commission finds that the discharge was within the meaning of Wis. Stat. § 108.04(1)(f) of the statutes.

Based upon the commission finding that the employee's discharge fell within the loss of license provision of Wis. Stat. § 108.04(1)(f), the employee was not eligible for the unemployment insurance benefits that he received and the next issue is whether the employee must repay the overpaid benefits.

There is no evidence of employer fault in the erroneously paid benefits. Instead, benefits were initially denied by the determination and were allowed by the appeal tribunal decision. The overpayment was created by the commission's reversal of the appeal tribunal decision. The commission further finds that the appeal tribunal's erroneous conclusion related to the applicability of the loss of license provision constituted departmental error.

The commission therefore finds that, in week 26 of 2008, the employee's employment was terminated by the employer because a license issued by a government agency that was required by law in order to perform the employee's customary work for the employer, had been suspended, revoked, or not renewed due to the employee's own fault, within the meaning of Wis. Stat. § 108.04(1)(f).

The commission also finds that the employee received benefits in the amount of $4,085, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission finally finds that waiver of overpayment recovery is waived under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the claimant or the employer as provided in Wis. Stat. § 108.04(13)(f) and the overpayment was a result of department error within the meaning of Wis. Stat. § 108.02(10e)(a) and (b).

DECISION

The decision of the administrative law judge is reversed. Accordingly, benefits are denied beginning in week 26 of 2008 and for a period of up to 5 weeks thereafter, or until the license is reissued or renewed, whichever occurs first. Thereafter, benefits are allowed, if there are other employers in the base period and the employee is otherwise qualified.

The wages paid by this employer shall be excluded from the employee's base period wages for purposes of benefit entitlement while the suspension, revocation, or nonrenewal is in effect. Any benefits paid for later weeks, based on the wages excluded, that would otherwise be chargeable to the employer's account, shall be charged either to the fund's balancing account or administrative accounts.

Although this decision results in an overpayment of benefits, the employee is not required to repay the overpayment as the overpayment was due to department error and without fault on behalf the employee.

Dated and mailed November 28, 2008
harrida : 150 AA 130

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision, and credibility was a factor in the administrative law judge's fact-finding. In this case, the commission's decision is based upon the undisputed facts.

 

cc: United Mailing Services, Madison


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uploaded 2008/12/29