VICKI J HEWITT, Employee
DONN W BERGQUIST LTD, Employer
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:
The employee has worked three years as an accounting clerk for the employer, an accounting and financial services business. The employee typically works three days per week, five hours per day.
In the calendar week ending March 14, 2009 (week 11), the employee was scheduled to work Monday, Wednesday and Friday. She worked Monday, March 9 but did not work for the employer on Wednesday or Friday, March 11 and 13 because she was called to jury duty those days. The employer's owner testified that the employee actually participated as a member of a jury for a two or three day trial. The employee filed a claim for partial unemployment insurance benefits for week 11.
Wis. Stat. § 108.04(1)(a) provides for a reduction in unemployment insurance benefits in any week in which a worker is called upon by their current employing unit, with due notice, for work that is actually available and the employee is unable or unavailable for such work. Under this statutory section, the amount of wages the worker could have earned performing the work is added to the wages that were actually earned to reduce the benefit entitlement for that week. Wis. Stat. § 108.05(3)(a) provides the formula for the reduction. However, Part II, C. 4. of the "Work Available" section of the Disputed Claims Manual, provides,
If an employee misses work due to legal obligations, the work missed is not considered "actually available" to that employee. . . Some examples are:
The issue to be decided is whether the employee was with due notice called upon by her current employing unit to report for any additional work actually available in week 11 of 2009 and, if so, whether she was available for that work and the amount of wages she would have earned in that week by performing all of the available work.
The administrative law judge reasoned that no evidence was adduced on the employee's behalf concerning her absences, as she had not appeared at the hearing. Yet, to determine the reasons for absence where a worker does not appear at the hearing, the commission has relied upon the reasons given by the employee to the employer. Sprouse v. Sears Roebuck & Co., UI Dec. Hearing No. 97601992MD (LIRC January 30, 1998).
The commission therefore finds that in week 11 of 2009, the employee was not with due notice called upon by the current employing unit to report for additional work actually available within the week, within the meaning of Wis. Stat. § 108.04(1)(a).
The decision of the administrative law judge is reversed. Accordingly, the employee's benefits for week 11 of 2009 shall not be reduced by the wages she could have earned had she worked on March 11 and 13, 2009.
Dated and mailed July 23, 2009
hewitvi : 150 : AA 110 PC 714.12
/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 prior to issuing this reversal decision. The commission has not reversed the ALJ based on a differing assessment of witness credibility or demeanor but because the commission believes the employer's testimony regarding the employee's reasons for absence is admissible for the reasons stated in the decision.
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uploaded 2009/07/30