VL 1007.01 BR 319.1 PC 714.11 1007.01
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GREGORY A MORTENSEN, Employee

RICE LAKE WEIGHING SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09201156EC


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. On October 16, 2009, the commission remanded the matter for additional testimony. The remand hearing was conducted on November 24, 2009 and the matter was returned to the commission for review. Based on its review of the records of the hearings conducted on June 8, 2009 and November 24, 2009, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for about nine months as a welder for the employer, a weighing equipment manufacturing business. His last day of work was on or about April 1, 2009 (week 14).

The employer's work rules obligated a worker to give notice of absence or tardiness at least 30 minutes prior to the beginning of a work shift. The employee was put on notice of this obligation.

The employee had been absent form work without notice on March 4, 12, 19 and 22, 2009. He met with the employer's operation's manager twice during the month of March regarding his attendance and was put on notice that he was expected to maintain regular attendance and give notice of his absences from work. At the time, the employee explained that he had other work which conflicted with his employment with the employer. The employee was warned that he was hired to work full-time and was disciplinarily suspended on March 25, 26 and 29, 2009 for his absences without notice.

The employee was again absent from work without notice on April 2, 5 and 6, 2009. He called the employer's establishment on April 7, 2009 (week 15) to find out if he still had a job with the employer and was told that he could pick up his tools. This statement effectively put him on notice that he no longer had a job with the employer.

Department records reflect that the employee initiated a claim for unemployment insurance benefits on April 7, 2009 (week 15), reporting a discharge from the employer with a last day of work of April 1, 2009.

On April 8, 2009, a UCB-16 Separation Notice was sent to the employer with an April 15, 2009 due date. The employer's Human Resource Assistant, Katcher, testified that the notice was returned to the department incomplete because as of April 14, 2009 they did not have all the payroll information regarding dates. The department witness testified that the department's computer records did not show that it was returned. The employer did not retain proof of return.

On April 9, 2009, department records reflect that two discharge questionnaires were sent to the employee and to the employer; the questionnaires sought information regarding the employee's performance, the "DschgPerf.doc," and his attendance, the "DschgAtt.doc". These questionnaires were to be returned within seven days.(1) Testimony at the hearings dealt with the discharge performance questionnaire. Department records reflect that the employee returned his questionnaires to the department. The employer's witnesses testified that the employer did not receive any discharge questionnaire and none was returned to the department by the employer. In terms of mail distribution, the employer's owner picks up the mail at the main office and, after sorting it with another individual, delivers all unemployment matters to the Human Resources department.

A department form, a UI Claim Investigation - Employer Statement, indicates that on April 27, 2009, the adjudicator assigned to resolve the separation issue telephoned the employer's telephone number of record for unemployment insurance matters. The adjudicator spoke with Marcon, the employer's payroll administrator. The UI Claim Investigation - Employer Statement reflects that the payroll administrator asked to have the questionnaire faxed to the employer, indicating that the questionnaire would be completed and the employer "will make sure that they get back to you this afternoon." Department records reflect that the UI Claim Investigation - Employer Statement was stored in the Department's UIB Net program at 2:24 p.m. on April 27, 2009. Handwritten notations on the discharge questionnaire reflect that the statement was faxed to Marcon on April 27, 2009. Katcher testified that Marcon gave her the message and fax on either April 27 or 28, 2009.

A determination was issued, mailed on April 28, 2009,(2) finding that the employee's discharge in week 15 of 2009 (week ending April 11, 2009) was not for misconduct connected with the employment. Based upon this determination, the employee began receiving unemployment insurance benefits. Additionally, the determination provided that if the decision was redetermined or appealed, the facts

SHOW THAT THE EMPLOYER DID NOT:
- RESPOND DURING A FACT-FINDING INVESTIGATION TO A WRITTEN REQUEST FOR INFORMATION DATED 04/09/09.

On April 28, 2009, the employer returned the completed questionnaire. The fax printing on Exhibit B appears to reflect a transmission at 10:18 a.m. with a 10:24 a.m. receipt.

On May 1, 2009, the employer appealed the determination, leading to the first hearing in this matter. The ALJ issued an appeal tribunal decision finding that the employee was not eligible for unemployment insurance benefits because he was not discharged but voluntarily terminated his employment and his quitting was not within any exception to allow for the immediate payment of benefits. The ALJ found good cause for the employer's failure to respond, concluding that "either because of postal error or some other factor, the questionnaire was not received at the employer's establishment." Thus, an overpayment was established for the benefits erroneously overpaid, totaling $3,267 for the unemployment insurance benefits he received for the calendar weeks ending April 11 through June 6, 2009 (weeks 15 -23). The employee also received Federal Additional Compensation (FAC) of $25 per week for weeks 15 - 23, totaling $225.

The first issue to be decided is whether the employee quit or was discharged, and based upon the nature of the separation, whether the employee is eligible for unemployment insurance benefits.

The employee contended that he was discharged. This contention cannot be sustained. An employee may be found to have voluntarily terminated his or her employment without saying "I quit" and a voluntary termination may include a situation in which an employer actually discharges a worker; specifically, a worker may demonstrate an intent to quit by word or manner of action, or by conduct, inconsistent with the continuation of the employment relationship. Nottelson v. ILHR Dept., 94 Wis. 2d 106, 119 (1980).

The employee was hired to perform 40 hours of work for the employer per week. The employee was absent from work without notice and was warned about the importance of his attendance. The employee conceded at the hearing that he explained his absences on the grounds that he had another job that he was trying out as part of his plans to move elsewhere with his girlfriend. In response, the employer stressed the importance of the employee working the hours he was scheduled. As part of the discipline for attendance the employee was suspended for three days. Under these circumstances, the employee's subsequent three consecutive days of absence without notice within a week of the suspension were so inconsistent with a continuation of the employment relationship as to evince an intent to terminate it. The employee was not discharged but quit.

Wis. Stat. § 108.04(7)(a) provides that unless a worker's quitting falls within a listed exception, a worker who terminates his or her employment is ineligible for unemployment insurance benefits for a period of four weeks after the quitting and until the worker has earned four times his or her weekly benefit rate which would have applied had the quitting not occurred. The employee failed to establish that his quitting fell within an exception to allow for the immediate payment of benefits.

Since the employee was paid benefits erroneously, the next issue for the commission is whether the employer failed to provide information without good cause.

Wis. Stat. 108.04(13)(f)(3) provides, with emphasis added,

If benefits are erroneously paid because the employer fails to file a report required by this chapter, the employer fails to provide correct and complete information on the report, the employer fails to object to the benefit claim under s. 108.09 (1), the employer fails to provide correct and complete information requested by the department during a fact-finding investigation, unless an appeal tribunal, the commission, or a court of competent jurisdiction finds that the employer had good cause for the failure to provide the information, or the employer aids and abets the claimant in an act of concealment as provided in sub. (11), the employer is at fault. If benefits are erroneously paid because an employee commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department, the employee is at fault.

Wis. Stat. § 108.04(13)(c) provides, with emphasis added,

(c) If an employer, after notice of a benefit claim, fails to file an objection to the claim under s. 108.09 (1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer. Except as otherwise provided in this paragraph, if an employer fails to provide correct and complete information requested by the department during a fact-finding investigation, but later provides the requested information, benefits paid prior to the end of the week in which a redetermination is issued regarding the matter or, if no redetermination is issued, prior to the end of the week in which an appeal tribunal decision is issued regarding the matter, are not affected by the redetermination or decision, unless the benefits are erroneously paid without fault on the part of the employer as provided in par. (f). If benefits are erroneously paid because the employer and the employee are at fault, the department shall charge the employer for the benefits and proceed to create an overpayment under s. 108.22 (8) (a). If benefits are erroneously paid without fault on the part of the employer, regardless of whether the employee is at fault, the department shall charge the benefits as provided in par. (d), unless par. (e) applies, and proceed to create an overpayment under s. 108.22 (8) (a). If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under s. 108.22 (8), the recovery does not affect benefit charges made under this paragraph.

Wis. Stat. § 108.04(13)(c)(1) provides,

1. The department shall waive recovery of benefits that were erroneously paid if:

a. The overpayment was the result of a departmental error and was not the fault of any employer under s. 108.04 (13) (f); and

b. The overpayment did not result from the fault of an employee as provided in s. 108.04 (13) (f), or because of a claimant's false statement or misrepresentation.

There are no specific statutory provisions dealing with the adjudicative process related to investigations; instead department policies with respect to investigation procedures are set forth in Subsection B of Section VII of the Adjudication Basics section of the Disputed Claims Manual. The section titled, "Making a 'Reasonable Attempt' to Obtain Information During the Fact Finding Process" provides, with emphasis added,

Unscheduled Telephone Request for Information

When the party is not immediately available at the time of contact, the minimum "reasonable attempt" criteria [(4)] must be applied.

The reasonable attempt requirement can be satisfied when the party offers an earlier date and time (prior to the 48 hour deadline) by which they will provide the requested information.

Additional time should be granted when requested by the party, depending on the circumstances.

If the party has the information you need but is unwilling to give it to you, you do not need to extend any time. Inform the party a decision will be made based on information available.

Note: If a telephone attempt to obtain information is met with no answer or a busy signal, the adjudicator may continue to call until contact is made or send a written request. If the phone is out of service, a written request for information is required.

Although the adjudicator must gather all the material facts that are necessary to resolve the issue being adjudicated, there are times when necessary information is not available.

The ALJ credited that the employer's process was reliable and that, had the discharge questionnaire been received by the employer, the employer would have responded. The ALJ thus found good cause for the employer's failure to provide correct and complete information during the department's fact finding interview on these grounds. Yet, whether this questionnaire was returned after it was originally sent was not the actual failure resulting in the erroneous payment of benefits. Specifically, on April 27, 2009, the adjudicator telephoned the employer to provide it with another opportunity to provide investigation information by completing the discharge questionnaire prior to issuing the determination. The employer was faxed and received the questionnaire that day.

While neither the actual adjudicator nor the employer's representative appeared as witnesses for the hearing, the notations on the contact log are sufficient to establish that the employer's representative arranged a deadline of that day to return the completed questionnaire for the investigation. In particular, Wis. Stat. § 108.09(4o) provides, with emphasis added,

DEPARTMENTAL RECORDS RELATING TO BENEFIT CLAIMS. In any hearing before an appeal tribunal under this section, a departmental record relating to a claim for benefits, other than a report specified in sub. (4m), constitutes prima facie evidence, and shall be admissible to prove, that an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of the claim, notwithstanding that the record or a statement contained in the record may be uncorroborated hearsay and may constitute the sole basis upon which issue of the employer's failure is decided, if the parties appearing at the hearing have been given an opportunity to review the record at or before the hearing and to rebut the information contained in the record. A record of the department that is admissible under this subsection shall be regarded as self authenticating and shall require no foundational or other testimony for its admissibility, unless the circumstances affirmatively indicate a lack of trustworthiness in the record. If such a record is admitted and made the basis of a decision, the record may constitute substantial evidence under s. 102.23 (6). For purposes of this subsection, "departmental record" means a memorandum, report, record, document, or data compilation that has been made or maintained by employees of the department in the regular course of the department's fact-finding investigation of a benefit claim, is contained in the department's paper or electronic files of the benefit claim, and relates to the department's investigative inquiries to an employer or statements or other matters submitted by the employer or its agent in connection with the fact-finding investigation of a benefit claim. A departmental record may not be admitted into evidence under this subsection or otherwise used under this subsection for any purpose other than to prove whether an employer provided or failed to provide to the department complete and correct information in a fact-finding investigation of a claim.

The commission remanded the matter to specifically give the employer the opportunity to address the issue of the employer's agreement to and failure to complete the questionnaire as stated for the adjudicator's investigation. The employer did not dispute the adjudicator's notes and no evidence was offered to indicate a lack of trustworthiness in the record. The employer also failed to establish good cause for its failure to return the questionnaire as it stated it would.

Additionally, there is no evidence of employee fault; in fact, departmental records reflect that the employee's information to the department raised the separation issue for investigation.

The commission therefore finds that:

(1) in week 15 of 2009, the claimant was not discharged but voluntarily terminated his employment and his quitting was not within any exception allowing for the immediate payment of benefits within the meaning of Wis. Stat. § 108.04(7), and

(2) the claimant was erroneously paid unemployment insurance benefits totaling $3,267, and that the erroneous payment was due to employer fault but not due to claimant fault and therefore benefits will "stand as paid" with the employer charged for the erroneously paid benefits, within the meaning of Wis. Stat. § 108.04(13)(f); the employee also received FAC benefits totaling $225.

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 15 of 2009 and until four weeks have elapsed since the end of the week of the quitting and the employee has earned wages in covered employment equaling at least four times the employee's weekly benefit rate which would have been paid had the quitting not occurred. The erroneous payment of benefits stand as paid with the employer charged for the erroneously paid benefits. This determination also results in an overpayment of federal additional compensation (FAC) benefits, you will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed December 23, 2009
mortegr : 150 : VL 1007.01 BR 319.1 PC 714.11

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission's modification and partial reversal is not based upon a differing credibility analysis but is due to a differing legal conclusion regarding the employer's fault based upon additional evidence obtained at the remand hearing.

cc: Lori Katcher, Human Resource Assistant


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uploaded 2010/01/08


Footnotes:

(1)( Back ) Each questionnaire warned,

If you don't return the completed form by fax or mail within 7 days of the date it was mailed, a decision based on the information on file will be issued. Your account will be charged for all benefits that are paid to the claimant in error if you file to provide correct and complete information during a fact-finding investigation.

(2)( Back ) Department records reflect that the adjudicator entered the rationale into the system at 5:01 p.m. on April 27, 2009. The determinations are centrally mailed; when the adjudicator made this entry, the determination was mailed the next day.

(3)( Back ) Prior to 2007 Wisconsin Act 59, the provisions dealing with employer fault were found in two separate provisions, Wis. Stat. 108.04(13)(f) and (g). 2007 Wis. Act 59 combined the language into paragraph (f) and repealed paragraph (g).

(4)( Back ) The Minimum "Reasonable Attempts" Criteria are set forth in the Disputed claims manual as follows:

When necessary information is unavailable, the adjudicator's documentation must show that "a reasonable attempt" was made to obtain the information from the parties (i.e. claimant, employer, employer's agent, etc.). The following minimum criteria have been established to define "a reasonable attempt." 

A telephone message must be left with a responsible person who agreed to deliver the message or left on an answering machine or voice mail. Documentation of telephone attempts must include the date, time and name (and the title, if appropriate) of the individual who answered the telephone call; or

A written request for information must be mailed, emailed or faxed to the party's address of record. Documentation of written attempts must include a copy of all correspondence.

In either case, the request for information must advise the party what information is needed, a date/time by which the party must respond, and that a failure to respond to the request by that date/time will result in a decision based on the information on file. If the information is being requested by telephone, email or fax, the deadline must never be less than 48 hours from the date/time of the request. When writing you must include a reasonable deadline which allows for mail time in addition to a minimum of 48 hours.