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

CHERYL L GRULKE, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10003791MD


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 by the Department.

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On April 8, 2010 (week 15), the claimant initiated an initial claim for unemployment benefits. Her claim was backdated to week 14 of 2010 and she filed weekly claim certifications thereafter.

The claimant began a leave of absence on or about September 25, 2009 (week 39), due to alleged harassment by her co-workers which caused her to suffer from anxiety and depression. The claimant exhausted her available sick leave in October 2009 and was told by her employer that she would have to apply for an unpaid leave of absence through the Family and Medical Lave Act. The employer did not tell the claimant that she may be eligible for unemployment benefits until she had exhausted her FMLA leave in or around April 2010. The claimant did not see a notice posted by the employer with regard to filing for unemployment benefits.

The issue to be decided is whether during weeks 44 of 2009 through 13 of 2010, the claimant failed to timely notify the department of an intention to initiate a benefit claim and whether the failure was due to any exceptional circumstances which would justify a waiver of the notification requirement.

The claimant contended that she failed to timely notify the department of an intention to initiate a benefit claim but that the notification requirement should be waived. This contention cannot be sustained. The employer is under no duty to affirmatively inform an employee applying for or on leave that the employee may file for unemployment benefits. The employer's duty is to post the notice about filing for benefits.

The ALJ's decision imposed a requirement on the employer that does not exist. The claimant was overpaid benefits in this case based on the ALJ's misinterpretation and/or misapplication of the law. Accordingly, the recovery of overpaid benefits will be waived.

The commission therefore finds that in weeks 44 of 2009 through 13 of 2010, the claimant failed to notify the department of an intention to initiate a benefit claim, within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129, and that the reason(s) for the failure do not constitute an exceptional circumstance so as to permit waiver of the notification requirement.

The commission further finds that the employee was paid benefits in the amount of $7,986.00 (of which $726.00 is set forth on another decision as an overpayment) for weeks 44 through 52 of 2009 and weeks 1 through 13 of 2010, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The commission further finds that waiver of benefit recovery of $7,260.00 is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the claimant as provided in Wis. Stat. § 108.04(13)(f), and was solely due to departmental error. See Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is ineligible for benefits in weeks 44 of 2009 through week 13 of 2010. The claimant is not required to repay overpaid benefits in the amount of $7,260.00.

Dated and mailed November 18, 2010
grulkch : 132 : 5 CP 360 : BR 335

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The ALJ found that the claimant did not see a notice posted regarding filing for UI benefits. The ALJ did not find that the employer in fact failed to post such notice. The commission notes that the employer was not sent notice of the hearing because the claimant indicated when filling out the questionnaire that the employer had the required notice posted. When a claimant indicates the required notice was posted, the employer is not sent a notice of hearing. Had the commission not reversed the ALJ, the employer would be entitled to participate in a hearing before it could be found that the employer failed to post the required notice.

cc: Attorney Robert Shumaker
Attorney Daniel J. LaRocque
Beaver Dam Unified School District


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