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

TROY E BROCKMAN, Employee

SCHOOL DISTRICT OF WEST DE PERE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10402014AP


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a school district, for about six years as a teacher. He last performed services on March 10, 2010 (week 11), at which time he initiated a benefit claim.

During the course of his employment the employee was a member of the West De Pere Education Association and was covered by a contract between the Association and the employer. The contract provided that teachers' annual salaries would be divided into 24 equal payments, and that at the end of the school year teachers would have the option of having their remaining unpaid salary paid as a lump sum. (See Ex. 1, Article X, sub. K.)

The employee signed a resignation agreement which took effect on March 10, 2010. The agreement provided that, "In consideration for the release set forth in this agreement, [the employee] will receive compensation equivalent to his pre-resignation salary and insurance contributions through the end of the 2009-2010 contract." The last day of work for teachers was June 11, 2010 and the contract ended on August 30, 2010. Pursuant to the Association contract, the employee chose to continue receiving deferred payments throughout the rest of the contract term.

The issue to be decided is whether the employee received dismissal or termination pay or other pay that should be treated as wages for benefit purposes for the week(s) in which the employee claimed benefits.

The employee concedes that the monies received between March 10 (week 11) and June 11 (week 24) constituted wages for unemployment insurance purposes and that he was not eligible for benefits during that time period. However, the employee maintains that income earned from June 11 (week 24) through August 30 (week 36) amounted to "deferred compensation" for work already performed.

While the resignation agreement the employee signed does state that the payments were a settlement offered in consideration for releasing his claims, it appears that, because the employer pays salary over 24 equal pay periods, the employee would have nonetheless continued to receive bi-weekly payments from the employer during the summer months, even in the absence of the resignation agreement. Given that, the commission concludes that monies paid from June 11 through August 30 were for wages previously earned.

Concluding that the payments did not constitute severance pay, the next question to decide is whether they were earned wages that should be used in calculating benefits.

The statute provides that wages reduce benefits in the week they are earned. See Wis. Stat. § 108.05(3). Although the employee's wages were spread out over 24 pay periods, the employee performed no services during the summer and therefore earned no wages.

The commission therefore finds that the employee received payments for weeks 11 through 24 of 2010, which are treated as wages for benefit purposes, within the meaning of Wis. Stat. § 108.02(26).

The commission further finds that the employee did not receive dismissal pay or earn wages for weeks 25 through 36 of 2010, within the meaning of Wis. Stat. § 108.05(3) and (5), and § 108.02(26).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits in weeks 11 through 24 of 2010, but is eligible for benefits in weeks 25 through 36 of 2010, provided he is otherwise qualified.

Dated and mailed November 19, 2010
brocktr . urr : 164 : 1 UW 910, UW 975

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the appeal tribunal about witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is as a matter of law and does not depend on credibility. The commission further notes that the employer has conceded that benefits should be payable as of week 25 of 2010.


cc: Dave Campshure
Attorney Melissa M. Thiel Collar
Attorney Robert W. Burns


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