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

CYNTHIA C HOFFMAN, Employee

JOSEPH VAN EPEREN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08403301AP


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 ineligible for benefits beginning in week 39 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 required to repay the sum of $1,757.00 to the Unemployment Reserve Fund.

Dated and mailed March 3, 2009
hoffmcy . usd : 132 : 1 VL 1039.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee has petitioned for commission review of the adverse appeal tribunal decision which found that the employee quit her work for the employer but not for any reason that permits immediate benefit payment. The employee did not request a leave of absence. The employee testified at the hearing that she gave two weeks notice that she was quitting. The $1,757.00 overpayment was the result of the employee failing to report to the department that she quit her work for the employer. Had the employee reported the quit the department could have conducted a prompt investigation thereby avoiding or lessening the overpayment.

The only exception to the quit disqualification that might apply is Wis. Stat. § 108.04(7)(k). Based on the employee's testimony, she does not meet that exception. The employee earned $10 per hour and worked two to three hours per day. The work was ten miles one way from her home. The commission uses the IRS standard mileage rate to calculate commuting expenses. For the time period at issue here that rate was 58.5 cents per mile.

The best scenario for the employee is to consider that she worked two hours a day, twice a week or two hours a day, three times a week. The employee's weekly benefit rate is $355. Based on earning $40 per week, with commuting expenses of $23.40, the employee's partial benefits plus wages she earned, less her commuting expenses, would exceed her weekly benefit rate. Based on earning $60 per week, with commuting expenses of $35.10, the employee's partial benefits plus wages she earned, less her commuting expenses, would exceed her weekly benefit rate.


cc: Joseph Van Eperen (Kimberly, Wisconsin)


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uploaded 2009/04/03