LISA R BROWN, 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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The claimant worked approximately one year, most recently as a graduate nurse intern, for a healthcare business. Her last day of work was June 11, 2009, and she initiated a claim for unemployment insurance benefits on July 14, 2009
(week 29).

The issue is whether, as of week 44 of 2009, the claimant earned 40 times her most recently paid regular unemployment insurance weekly benefit rate during the relevant base period.

The claimant's weekly benefit rate was $363.00. She exhausted her regular unemployment insurance benefits as of week 43 of 2009, the week ending October 24. In order to be eligible for EUC08, the claimant must have base period wages of at least 40 times her regular weekly benefit rate during her base period. Consequently, to be eligible or EUC08, the claimant had to have base period wages totaling $14,520.00

The claimant's base period was the second quarter of 2008 (March 30 to June 28), the third quarter of 2008 (June 29 to September 27), the fourth quarter of 2008 (September 28 to December 27) and the first quarter of 2009 (December 28 to March 28). The wages reported by the claimant's employers for that period were $316.54 from Medical Associates, $270.82 from Froedtert, and $13,801.88 from Wheaton Franciscan, for base period wages totaling $14,389.24. However, Froedtert reported the claimant's federal taxable wages rather than her gross wages. The claimant's gross wages from Froedtert paid during her base period totaled $276.36. Wheaton Franciscan also reported the claimant's federal taxable wages rather than her gross wages. The claimant's gross wages from Wheaton Franciscan paid during her base period totaled $14,004.88. The claimant thus had wages paid during her base period totaling $14,596.98. Since the claimant was receiving the maximum benefit rate based on the erroneously reported wages, the 40 times her weekly benefit rate did not change considering the corrected gross wages. The claimant therefore had base period wages exceeding 40 times her weekly benefit rate based on her regular weekly benefit rate.

The commission therefore finds that as of week 44 of 2009, the claimant was eligible for EUC08 because she had base period wages equaling at least 40 times the most recently paid benefit rate of regular unemployment insurance, within the meaning of P.L. 110-252.

The decision of the administrative law judge is reversed. Accordingly, as of week 44 of 2009, the claimant is eligible for EUC08, if she is otherwise qualified.

Dated and mailed April 30, 2010
brownli : 132 : 5 BR 338

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The commission's decision is not based on the credibility of the witnesses. The department witness testified that when calculating base period wages the gross wages, and not federal taxable wages, are to be reported. The two employers referenced above did not report the claimant's gross wages. In addition, the ALJ found that wages of $203.69, paid on April 11, 2008, were not considered base period wages because the wages were for the pay period ending March 29, 2008. However, base period wages are not wages earned during the base period, but wages paid during the base period. Wis. Stat. § 108.02(4m)(a). Therefore, although the wages of $203.69 were for work performed outside the base period, they were paid in the base period, and thus were base period wages.

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uploaded 2010/05/12