STEPHANIE C SMALLEY, Employee
BELLEZZA, 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 makes the following:
The employee worked approximately two years for the employer, a beauty salon. The employee worked as a manager and a hairstylist for the salon. The employee's last day of work was August 29, 2009 (week 35) when she hurt her knee at work. The employee was off of work the following week due this injury, but she never returned to the employer's business because it closed its doors on September 15, 2009 (week 38).
The employee was aware of the employer's decision to close its business approximately two weeks prior to September 15, 2009. At that time, the employee decided to open her own salon business which she had anticipated opening November 1, 2009 (week 45) but the contracting work took longer than expected. The employee initiated a claim for unemployment benefits on September 30, 2009 (week 40). The employee signed a lease on January 15, 2010, and officially opened her hair salon on January 18, 2010 (week 4). After filing for unemployment benefits, the employee looked for work as a bartender, a convenience store/gas station attendant and for work in beauty salons.
The issue to be decided is whether the employee was able to work and available for work as of week 48 of 2009; more specifically, whether the employee withdrew herself from the labor market by making plans and arrangements to open her own business.
Wisconsin Stat. § 108.04(2) provides as follows:
(2) GENERAL QUALIFYING REQUIREMENTS. (a) Except as provided in par. (b) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week for which he or she earns no wages only if:
(1) The individual is able to work and available for work during that week;
(2) As of that week, the individual has registered for work; and
(3) The individual conducts a reasonable search for suitable work during that week. ...
Wisconsin Administrative Code § DWD 128.01(4)(a) defines available for work as :
... an attachment to the labor market and is ready to perform full-time suitable work in the claimant's labor market area. During any week, a claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. In determining whether a claimant has withdrawn from the labor market, the department shall consider one or more of the following factors: ...
[factors enumerated in Wis. Admin. Code § DWD 128.01(4)(a)(1) through (8) omitted].
Applying the statute and relevant administrative code to the facts at hand, the commission concludes that the employee did not withdrew herself from the labor market despite her plans and involvement in starting her own business because she was ready to perform full-time suitable work in her labor market. The employee was available for first shift work and did not have any specific wage restrictions or restrictions on the type of work sought. Additionally, the employee did not have any other unreasonable restrictions on her working conditions. Although the administrative law judged concluded the employee's availability for other full-time work was limited by her needing to have things lined up to be able to open her own business, the employee was available for full-time work while the remodeling was being completed on the space she was leasing for her new business.
The commission recognizes that the employee's availability for full-time work would have been restricted had the employee actually opened her salon for business in week 48 of 2009 but the business did not open until week 4 of 2010 at which time the employee stopped filing for unemployment benefits. Therefore, the employee did not withdraw herself from the labor market as she was ready to perform full-time suitable work in her labor market in week 48 of 2009.
Therefore as of week 48 of 2009, the employee was able to work and available for suitable work within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128.01.
The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 48 of 2009, if she is otherwise qualified. There is no overpayment as a result of this decision.
Dated and mailed September 9, 2010
smallst : 135 : 5 AA265
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission consulted with the administrative law judge as to her credibility and demeanor impressions of the witness. The administrative law judge found the employee incredible when she said she was available for full-time work. The commission reverses the administrative law judge's decision as a matter of law concluding that starting a business, based on the facts found here, did not withdraw the employee from her labor market and therefore she was available for full-time work in her labor market.
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uploaded 2010/11/02