TESS K FIEDLER, Employee

BANE NELSON INC, Employer

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for unemployment benefits beginning in week 37 of 2009, and until the employee is again able to work and available for suitable work. The employee is required to repay the sum of $561.00 to the Unemployment Reserve Fund. This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits. The employee will receive, or may have already received, a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid

Dated and mailed May 5, 2010
fiedlte . usd : 178 : 1 AA 200 AA 205

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In her petition for commission review, the employee argues that the ALJ failed to produce a labor market report to establish whether the employee was able and available for work given her school schedule. The employee argues that the department failed to overcome the presumption that she is able and available for work despite her restrictions and cites various LIRC cases in support of her contention. Finally, the employee argues that she would be willing to consider quitting school to accept first shift full time work.

The employee raised the issue of her availability for work when she began full time school attendance which conflicted with the hours of first shift work. At that point, it was the employee's burden to establish that this shift restriction did not constitute a withdrawal from the labor market.

The administrative code provisions concerning whether a worker is able and available for work were extensively revised effective April 1, 2008. As the employee cites in her brief, the new criteria for availability are found at DWD 128.01(4). The department is directed by this section to consider one or more of those sections in determining if a worker has withdrawn from the labor market and the 50 percent threshold and exclusive reliance on labor market reports have been eliminated.

DWD 128.10(4)(a)2 provides in relevant part:

2. 'Shift and time restrictions.' A claimant is considered to have withdrawn from the labor market if he or she is not available for full-time suitable work during the standard hours in which work is performed in the occupations in which the claimant usually works or has prior training or experience. In determining the standard hours in which work is performed in the occupations, the department shall include the hours and the shift that the claimant worked in an occupation in one or more previous jobs since the start of the claimant's base period.

The employee worked primarily first shift as a construction laborer during the two summers she was employed full time. The ALJ did not credit the employee's testimony that she was genuinely interested in or would accept full time work during the school year. The ALJ is required to evaluate the credibility of the testimony and her analysis in the decision regarding her assessment of the employee's testimony explains the factors she used to reach her conclusion that the employee was not genuinely available for full time work. After careful review of the record, the commission accepts the ALJ's credibility assessment that the employee is not genuinely attached to the labor market and willing to accept full time work during her customary shift or any other shift, while attending school. It therefore affirms the appeal tribunal decision.

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uploaded 2010/06/11