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

KORI K GROSHEK, Employee

STAFF UP AMERICA , Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09611888MW


O R D E R


Wisconsin Statute § 108.09(6)(d), provides that the commission may affirm, reverse, modify or set aside the appeal tribunal decision on the basis of the evidence previously submitted, may order the taking of additional evidence, or it may remand the matter to the department for further proceedings. Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the appeal tribunal decision in the above-referenced matter and remands the matter for a new hearing and decision on the merits of the case.

Dated and mailed January 29, 2010
groshko . usd : 145 : 5 PC 711 PC 734

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The last day to file a timely appeal in this matter was November 27, 2009. The employer's representative as well as the department, and the Labor and Industry Review Commission, was closed on that day.

Wis. Admin. Code § DWD 140.01(2)(a) provides in part:

"An appeal shall be filed after a copy of the determination is mailed or given to a party, whichever first occurs, as specified under ss. 108.09 or 108.10, Stats. If a party first receives a determination after the statutory appeal period has expired and through no fault of that party, the statutory appeal period as specified under ss. 108.09 or 108.10, Stats., shall extend from the date the party receives the determination. An appeal received within these time limits is timely filed. If the deadline for filing an appeal falls on a Saturday, Sunday, any of the holidays enumerated under ss. 230.35 (4) (a) and 995.20, Stats., or any other day on which mail is not delivered by the United States postal service, then the deadline shall be extended to include the next business day."

While this the day after Thanksgiving is not mentioned specifically in the administrative code, this was a state furlough day unique to 2009, and the same principle applies. The commission deems the employer's appeal timely as it was mailed the next business day after the appeal deadline.

With respect to the employer's petition, there was no hearing, as the ALJ dismissed the employer's request for hearing based on the explanation for late hearing it provided to the department.


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uploaded 2010/02/10