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

ORVIL J ROSARIO, Employee

OLYMPUS FLAG & BANNER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10605730MD


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, the employer's request to set aside the benefit year beginning in week 13 of 2009 is denied.

Dated and mailed December 23, 2010
rosaror . usd : 145 : 6  CP 395

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision. The employer states that it is axiomatic that employees are only eligible for unemployment benefits when they are actually unemployed. The employer argues that the benefit year is the 52 or 53 week period beginning with a valid new claim week. The employer argues that the employee's benefit year should not start in week 13 because the employee was still working for the employer at that point. However, the claimant was not paid any benefits until week 30 of 2009.

Wis. Stat. § 108.06(2)(d) provides that:

(d) A claimant may request that the department set aside a benefit year by filing a written, verbal or electronic request in the manner that the department prescribes by rule. The department shall grant the request and cancel the benefit year if the request is voluntary, benefits have not been paid to the claimant and at the time the department acts upon the request for that benefit year the claimant's benefit eligibility is not suspended. If the claimant does not meet these requirements, the department shall not set aside the benefit year unless the department defines by rule exceptional circumstances in which a claimant may be permitted to set aside a request to establish a benefit year and the claimant qualifies to make such a request under the circumstances described in the rule.

The employer argues that although the employee did not make the request to set aside his benefit year, the department can still set it aside if the statutory conditions are met. However, the statute specifically states that "a claimant may request" that the department set aside the benefit year. The administrative code likewise envisions that the request to set aside the benefit year be made by the claimant. The employer argues that the claimant must have either acted in a fraudulent manner or been mistaken when he initiated the benefit claim in March of 2009 because he was fully employed. The claimant was laid off for two days and may have started his benefit claim before he realized he was going to be paid for those days by the employer. In any event, the claimant did not receive any benefits for week 13 of 2009, so he was not acting in a fraudulent manner. Under the circumstances in this case, the claimant's benefit year cannot be set aside.

cc: Attorney Frank Terschan


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