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

PATRICIA I PARRISH, Employee

BROWN CAB SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09202217EC


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked more than nine years as a driver for the employer, a taxi company. Her last day of work was July 20, 2009 (week 30).

The issue is whether the employee's loss of her drivers license rendered her ineligible for benefits within the meaning of Wis. Stat. § 108.04(1)(f).

Prior to 2009, the employee had been convicted of drunk driving (OWI).

In June of 2009, the employee was again arrested for OWI. The employee testified that she only recalls having two drinks that night; after this, was in the driver's seat of a vehicle with the key in the ignition; does not remember anything that occurred for several hours, including her arrest; suspects that someone put something in her drink; and has entered a not guilty plea to the charge which has not yet been resolved.

On or around June 20, 2009, the employee phoned the employer's owner and told him that she had been arrested for OWI and would be losing her license on July 21, 2009.

Since her job requires a valid drivers license, the employer discharged the employee effective July 21, 2009.

The employee's drivers license was suspended on July 23, 2009, and has not been reinstated.

Wisconsin Statutes § 108.04(1)(f) provides:

(f) If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first....

Since it is undisputed that the employee is required by law to have a license in order to perform her customary work as a taxi driver, and her license was suspended, the question is whether this suspension was "due to the employee's fault."

The employee admits that she had a prior OWI conviction; consumed two mixed drinks at a bar; got in a car, presumably with the intent to operate it since she was sitting in the driver's seat and the keys were in the ignition; was arrested for OWI; and her license was suspended in July 2009, and has remained suspended since that time, as a result.

The employee's admissions are sufficient to establish fault within the meaning of Wis. Stat. § 108.04(1)(f). Although the ALJ, in awarding benefits, appears to have relied upon the fact that the employee was fighting the OWI charge, the standard of proof required to establish fault for purposes of Wis. Stat. 108.04(1)(f) is not coextensive with the standard of proof required to establish guilt for the charged crime of OWI.

Therefore, the commission finds that in week 30 of 2009, the employee was terminated because of the loss of a license required by law due to the employee's fault within the meaning of Wis. Stat. § 108.04 (1)(f).

The commission further finds that the employee was paid benefits in the amount of $7,798, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

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 employee, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).


DECISION

Accordingly, benefits are denied beginning in week 30 of 2009 and for a period of up to five weeks thereafter, or until the license is reissued or renewed, whichever occurs first. Thereafter, benefits are allowed, if there are other employers in the base period and the employee is otherwise qualified. The employee is required to repay the sum of $7,798 to the Unemployment Reserve Fund. This determination also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. You will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid. The initial Benefit Computation (Form UCB-700), issued on July 27, 2009, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed February 19, 2010
parripa . urr : 115 : 5 AA 130 PC 714.11

/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 before reversing his decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


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