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

NICOLE E SCHROEDER, Employee

THE LANG STORE LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09005266MD


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 eligible for benefits beginning in week 46 of 2009, if otherwise qualified.

Dated and mailed February 12, 2010
schroni : 135 : 5 AA 200 AA 205 AA 253

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In her petition for commission review, the employee contends she did not quit her job to attend school but rather her job was eliminated. However, the employment separation was not an issue noticed for hearing. The only issue before the ALJ and now the commission is whether the employee is able to work and available for work during the weeks she claimed.

It is undisputed that the employee enrolled as a full-time student at MATC on August 24, 2009 (week 35). The employee is pursuing a two-year associate degree in business management with the plan to transfer her MATC credits to a four-year Bachelor of Arts degree. In week 46 of 2009, the employee began working as a part-time sales associate for a clothing store.

Therefore the issue for commission review is whether the employee is able and available for suitable work in her labor market despite the controllable restriction of her full-time school attendance. Wis. Stat. § 108.04(2) and the relevant Wisconsin Administrative Code § DWD 128.01(4)(a) require that a claimant maintain an attachment to the labor market and is ready to perform full-time suitable work in the claimant's labor market area in order to be considered able and available in the claimant's labor market. A claimant is not available for suitable work if the claimant has withdrawn from the labor market because of restrictions on a claimant's availability. See Wisconsin Administrative Code § DWD 128.01(4)(a). Specifically, the employee's full-time school attendance withdrew her from suitable work during the standard hours in which the work the employee performed based on experience and training occurred. Therefore, the employee's full-time school attendance made her unavailable during weeks 36 through 46 of 2009.

Furthermore, the employee's full-time school attendance did not meet the definition of approved training within the meaning of Wis. Stat. § 108.04(16) because the program the employee was enrolled in granted substantial college credit leading to a bachelor's or higher degree. This type of schooling is not approved training within the meaning of the statute.

Finally, the employee began work part-time in week 46 of 2009 at a retail store. The employee became attached again to the labor market and therefore was available for suitable work within the meaning of Wis. Stat. § 108.04(2)(a) and ch. DWD 128 of the Wisconsin Administrative Code. The employee therefore is eligible for benefits beginning in week 46 of 2009, if she is otherwise qualified.



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uploaded 2010/02/19