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

BRITTANY M SHELDON, Employee

RAINTREE ENTERPRISES ABBEY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10000344MD


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 department issued an initial determination allowing benefits, and the employer appealed. A hearing notice was sent to the employee, who resided in Lake Geneva. She was advised that a hearing would take place in Janesville at 1:00 p.m. on December 17, 2009.

The employee obtained a babysitter and made arrangements to attend the hearing. Because she was not familiar with Janesville, she downloaded directions from MapQuest. The employee left for the hearing sometime before 12:00 p.m.(1) On the way to the hearing, the employee took a wrong turn and got lost. At 1:10 p.m. she called the hearing office to report she would be late. Up until that point the employee believed that the hearing was not going to start until 1:30 p.m. The employee arrived at the hearing location approximately 25 minutes into the hearing. Upon her arrival, the administrative law judge stated that she had already finished with one witness and that the hearing would be over soon. The administrative law judge refused to let the employee participate and told her she could write a "good cause" letter.

The issue to be decided is whether the employee had good cause for failing to appear at the hearing.(2)

Although the employee erroneously believed the hearing was not going to start until 1:30 p.m., she nonetheless left her home with sufficient time to get to the hearing location by 1:00p.m. The employee left home before noon for a drive that should have taken her about 51 minutes. She gave herself at least an hour to get to the hearing, and maybe more. The employee also made reasonable efforts to familiarize herself with the hearing location by getting directions in advance from MapQuest. However, she made a wrong turn and got lost. Even a diligent driver can get lost while trying to find a location in an unfamiliar city, and the commission believes that the employee had good cause for failing to appear under these circumstances.

The commission therefore finds that the employee failed to appear at hearing in a timely manner, and that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded for a hearing and decision on the merits of the case.

Dated and mailed June 16, 2010
sheldbr . urr : 164 : 1 PC 712

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The portion of the administrative code governing failure to appear by parties who are schedule for in-person unemployment insurance appeals hearings contains the following provision:

"Parties who fail to appear; general provisions. All parties who are required to appear in person shall appear at the hearing location no later than the starting time listed on the notice of hearing. If the appellant does not appear within 15 minutes after the scheduled starting time of the hearing, the administrative law judge may dismiss the appeal. If the respondent does not appear within 5 minutes after the scheduled starting time of the hearing and the appellant is present, the administrative law judge may commence the hearing. . . "

Wis. Admin. Code § DWD 140.13 (emphasis added).

While the rule allows the administrative law judge to begin the hearing without the respondent, it does not authorize the administrative law judge to exclude the respondent from the hearing while it is still in progress.

Similarly, the hearing notice which is sent to the parties states, "If you are the respondent listed on the reverse side, the hearing will begin without you if you fail to appear within 5 minutes of the start time." The hearing notice does not alert the respondent that, if it arrives late, it may be barred from participation in the hearing.

In contrast, the portion of the administrative code governing failures to appear by parties who are schedule for telephone hearings contains the following provision:

"If the respondent is scheduled to appear by telephone; the administrative law judge may proceed with the hearing if, within 5 minutes after the starting time for the hearing, neither the respondent nor the respondent's authorized representative can be reached at the respondent's telephone number of record or the telephone number furnished to the hearing office. The administrative law judge may refuse to allow a respondent to testify if the administrative law judge is unable to reach the respondent or the respondent's authorized representative and neither the respondent nor the. respondent's authorized representative have contacted the hearing office within 15 minutes after the starting time for the hearing. The respondent shall be considered to have failed to appear for the hearing if the administrative law judge so refuses. The respondent may appeal such a finding under this chapter."

Wis. Admin. Code § DWD 140.11(4) (emphasis added).

If the department would like to have the discretion to treat respondents who arrive late for in-person hearings in the same as manner as those who arrive late for telephone hearings, it should draft a similar rule.

NOTE: The commission did not confer with the appeal tribunal about witness credibility and demeanor. The commission's reversal is not based on a differing assessment of witness credibility.

cc: The Abbey Resort & Spa (Fontana, Wisconsin)


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Footnotes:

(1)( Back ) The administrative law judge did not ask the employee to provide the exact time she left for the hearing location and did not ask how long the drive to the hearing location would take. MapQuest, at http://www.mapquest.com/, to which the employee testified she referred, shows that the driving distance was 40.79 miles with an estimated travel time of 51 minutes.

(2)( Back ) The commission has resolved this matter as a failure to appear, as that is the issue that was noticed for the hearing and decided by the administrative law judge. However, the commission's resolution /does not constitute acceptance of the proposition that a late arrival by a respondent constitutes a failure to appear.


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