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

TAI H TRAN, Employee

UNCLE MIKES BAKE SHOPPE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08402768AP


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 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 three months as a mixer/assistant for the employer, a business operating a bakery. His last day of work was June 25, 2008 (week 26).

The employee reopened his claim for unemployment benefits on August 18, 2008 (week 34). An issue arose as to his eligibility for unemployment benefits in light of his separation from employment. Following an investigation, a determination was issued on September 13, 2008, which found that the employee quit his job, and his quitting did not fall within any exception which would allow the immediate payment of unemployment benefits. Benefits were denied. The appeal procedure prescribed by the department appeared on the determination. The determination also stated that any request for a hearing must be received or postmarked by September 29, 2008, in order to be timely. The employee's request for hearing was postmarked November 6, 2008, and received on November 7, 2008.

The employee did not file a timely request for hearing because he was incarcerated during the appeal period. The employee was sitting at home when the police ran his car plates and picked him up for an outstanding warrant related to someone misusing his identify in California. Later charges were brought against him for drug possession and bail jumping. The employee pleaded no contest to some charges and others were dropped. The employee had no friends or family in the area. He did not ask his attorney from the public defenders office to go to his PO Box. He asked both his attorney and a corrections officer to help him get his mail forwarded to the jail. They were unable or unwilling to do so.

The employee had little reason to suspect that he was going to be arrested when he was sitting at his home. The employee had no family or friends to retrieve his mail. The commission does not consider it practical to expect the employee to have a public defender go to his PO Box to get his mail. The employee did attempt to have his mail forwarded but the two individuals he asked did not do so. The employee indicated he fought the charges, he believed the charges were untrue, and he pleaded no contest. A no contest plea cannot be held to establish that he was guilty of those charges. Therefore, there is nothing in the record to establish that he was culpable or at fault in his incarceration or had reason to anticipate that he would be incarcerated.

The commission therefore finds that the employee filed a late request for hearing but established that his request for hearing was late for a reason beyond his control within the meaning of Wis. Stat. § 108.09(4)(c) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing is not dismissed. A hearing on the merits will be scheduled as soon as possible.

Dated and mailed January 5, 2009
trantai . urr : 132 : 1 : PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


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uploaded 2009/01/27