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

WAYNE A VANDER ARK, Employee

UW PROVISION CO TRANSFER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10001073MD


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, for weeks 3 through 39 of 2010, benefits otherwise payable for any week of partial or total unemployment are to be reduced by a wage amount of $589.59.

Dated and mailed July 22, 2010
vandewa . usd : 164 : 1 UW 980

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

In the petition for commission review the employee argues that he does not believe the money in his 401(k) plan should be considered reportable income to offset his unemployment benefits, as this money was part of his regular compensation package. The employee contends that he is fully vested in the funds and was told that the money he contributed could be used for hardship. The employee argues that this money should be treated like a regular savings account from which he could make a withdrawal with no effect upon his benefits. The employee's arguments fail. The fact that pension payments are part of the employee's total compensation package does not affect their treatment for unemployment insurance purposes. Where the contributions were made by the employer, they reduce the amount of unemployment benefits payable. The fact that the employee is fully vested in the funds also does not affect the outcome of the case, nor does the fact that the money withdrawn was used for hardship. Finally, with regard to the suggestion that the pension should be treated like money withdrawn from a regular savings account, a key difference between the employee's pension account and a regular savings account is that contributions to the pension account are made pre-tax and are not included in wages subject to income tax at the time they are contributed, whereas the money deposited into a regular savings account is from the employee's taxed compensation. Consequently, pension payments reduce the employee's benefits payable in the weeks to which they are allocated while withdrawals from a regular savings account do not.

The commission has considered the remaining arguments raised in the employee's petition, but does not find them persuasive. Because the commission agrees with the appeal tribunal that the employee received a pension that reduced his unemployment benefits in the manner set forth in the decision, the appeal tribunal decision is affirmed.



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uploaded 2010/08/11