AMANDA E HOUSEMAN, Claimant
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:
In November 2007, the claimant moved from Wisconsin to Missouri. She lived and worked there for about one year, holding three different jobs. Prior to moving to Missouri, she had worked in Wisconsin. She initiated a valid new claim for benefits through Wisconsin in week 24 of 2008, the calendar week ending June 14. She claimed benefits through week 37 of 2008, the calendar week ending September 13, at which point she stopped filing for benefits because she became reemployed.
In week 51 of 2008, the calendar week ending December 20, the claimant resumed her claim for Wisconsin unemployment insurance benefits. In week 12 of 2009, the calendar week ending March 21, she exhausted her eligibility for Wisconsin benefits and was notified of potential eligibility for EUC08 and was directed to contact Missouri to determine whether she was eligible for benefits from that state. She did as instructed and, on March 30, 2009, the Missouri Division of Employment Security, Department of Labor and Industrial Relations, issued a Notice of Initial Determination of Status as an Insured Worker finding that the claimant was not an insured worker because she was not paid wages of at least $1,500 in any one quarter of her base period. Based upon that determination, Wisconsin determined that she has exhausted all of her regular unemployment insurance entitlement and that she was, therefore, eligible for EUC08. The claimant was then paid EUC08 benefits for weeks 15 through week 21 of 2009, the calendar weeks ending April 11 through May 23, in a total amount of $1,216, including two weeks of partial payments.(1) Missouri then received the fourth quarter reports for 2008, including a report from one of the claimant's employers, Kerley's, showing that she had benefits in week 15 of 2009, and for weeks claimed thereafter. As a result, she was not an exhaustee and was determined not to be entitled to EUC08 for those weeks for which she had been paid those benefits. On June 10, 2009 (week 24), upon receipt of that information, the department informed the claimant of the problem and directed her to contact Missouri to apply for benefits. The claimant again did as directed but was unable to get through on the telephone system.
The issue presented is whether the claimant is an exhaustee within the meaning of Public Law 110-252 and whether, if so, the overpayment may be waived.
Public Law 110-252, sec. 4001 provides, in relevant part:
SEC. 4001. (a) IN GENERAL.-Any State which desires to do so may enter into and participate in an agreement under this title with the Secretary of Labor (in this title referred to as the ''Secretary''). Any State which is a party to an agreement under this title may, upon providing 30 days' written notice to the Secretary, terminate such agreement.
(b) PROVISIONS OF AGREEMENT.-Any agreement under subsection (a) shall provide that the State agency of the State will make payments of emergency unemployment compensation to individuals who-
(1) have exhausted all rights to regular compensation under the State law or under Federal law with respect to a benefit year (excluding any benefit year that ended before May 1, 2007);
(2) have no rights to regular compensation or extended compensation with respect to a week under such law or any other State unemployment compensation law or to compensation under any other Federal law (except as provided under subsection (e)); and
(3) are not receiving compensation with respect to such week under the unemployment compensation law of Canada.
(c) EXHAUSTION OF BENEFITS.-For purposes of subsection (b)(1), an individual shall be deemed to have exhausted such individual's rights to regular compensation under a State law when-
(1) no payments of regular compensation can be made under such law because such individual has received all regular compensation available to such individual based on employment or wages during such individual's base period; or
(2) such individual's rights to such compensation have been terminated by reason of the expiration of the benefit year with respect to which such rights existed.
Unemployment Insurance Program Letter (UIPL) 23-08, sets forth instructions for implementing and operating EUC08 and provides, in relevant part:
b. Determining Exhaustees.
(1) Under Section 4001(c) of the Act, for an individual to be considered to have exhausted benefit rights to regular compensation in an applicable benefit year (for purposes of meeting the first EUC08 eligibility criterion), the individual must have either:
(A) received all regular compensation payable based on employment and/or wages during the applicable base period; or (B) had rights to regular compensation terminated by reason of the expiration of the applicable benefit year in which these rights existed.
(2) Exhaustees cease to be exhaustees when they can establish a valid new benefit year; therefore, at each quarter change, the state must check to see if an individual meets the state's requirements to establish a new benefit year. If the individual can establish a new benefit year, s/he would no longer qualify for the EUC08 claim. In these cases, the claimant should be advised that s/he no longer qualifies for the EUC08 claim and that s/he can file a regular UI claim.
Once the claimant qualifies for a new claim, the payments on the EUC08 claim must end, even if the Weekly Benefit Amount (WBA) for the new claim is lower than what the claimant was receiving on the EUC08 claim.
Note. The requirement to check eligibility for regular compensation at each quarterly change was not explicitly stated in the guidance implementing the Temporary Extended Unemployment Compensation Act of 2002. However, the Department has determined that it is a method of administration necessary for assuring that individuals have in fact exhausted regular compensation as required by the Act.
The Department of Labor specifically requires a state to check for UI eligibility at each quarterly change. The department did so in this case. Once it was determined that the claimant qualified for a new benefit year in Missouri the employee did not meet the definition of "exhaustee." The claimant's difficulty in starting her Missouri claim does not change the fact that she has not exhausted her rights to regular compensation in Missouri.
The federal law governing EUC payments provides that individuals who receive EUC benefits to which they are not entitled shall repay such amounts unless the payment of such amounts was without fault on the part of the individual and such repayment would be contrary to equity and good conscience. (P.L. 110-252).
The U.S. Department of Labor has advised states that the state may apply its own waiver law if the state law requires the state to determine that the erroneous payment was without fault on the part of the claimant and recovery would be contrary to equity and good conscience. UIPL 23-08, Attachment A, page 11. The State of Wisconsin has determined to apply state waiver law to determine whether EUC benefits must be repaid.(2) Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of erroneously paid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the claimant. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.
The claimant was not at fault in causing the erroneous EUC payments. However, the department was also not at fault. Benefits were paid because the department was not aware of the claimant's wages in the fourth quarter of 2008 at the time it began paying the claimant EUC.
The commission therefore finds that as of week 15 of 2009, the claimant was not eligible to begin a claim for federal Emergency Unemployment Compensation because she was not an "exhaustee" within the meaning of the Supplemental Appropriations Act of 2008 (P.L. 110-252) and the Unemployment Compensation Extension Act of 2008 (P.L. 110-449).
The commission further finds that the claimant was paid EUC benefits for weeks 15 through 21 in the amount of $1,216.00, for which the claimant was not eligible and to which the claimant was not entitled.
The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the claimant as provided in Wis. Stat. § 108.04(13)(f), it also was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c).
The decision of the administrative law judge is reversed. Accordingly, the claimant is not eligible for federal EUC as of week 15 of 2009. The claimant is required to repay the sum of $1,216.00. This determination also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. The claimant 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 16, 2009
houseam : 132 : 5 BR 338 BR 335.03
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on credibility. The commission disagrees with the ALJ's interpretation and application of PL 110-252.
cc:
Daniel J. LaRocque (Bureau of Legal Affairs)
Tracey L. Schwalbe (Bureau of Legal Affairs)
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