KATHARINE A KOCHANOWSKI, Employee

NENNIG LAW OFFICES LLC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In the third full paragraph on page 3 of the decision, the second and third sentences are deleted.

2. The second full paragraph on page 4 of the decision is modified to state as follows:

The employee was paid benefits in the amount of $2,718, for which the employee was not eligible and to which she was not entitled, but waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because this overpayment was the result of a department error and did not result from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(d).

3. The fourth and following sentences of the DECISION section are deleted.

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2010, and until four weeks have elapsed since the end of the week of quitting and she has earned wages in covered employment performed after the week of quitting equaling at least four times her weekly benefit rate which would have been paid had the quitting not occurred. Wages earned by the employee from the employer in weeks where the reduced hours are in effect may be used to meet the requalification requirement. Repayment of the $2,178 in overpaid benefits is waived. This decision also results in the overpayment of Federal Additional Compensation (FAC) benefits that may have to be repaid by the employee. The employee will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that may be required to be repaid, which notice is incorporated in and made a part of this decision.

Dated and mailed January 7, 2011
kochaka . umd : 115 : 1 VL 1039.09 ; BR 335.03

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

At the end of her employment, the employee was typically working 15 hours each week.

In June 2010, the employee informed the employer that she was moving to Plover, Wisconsin, two hours from Madison. The employee was aware that, as a result of this move, she would be unavailable to perform certain of the duties she had been performing for the employer, and the employer intended to hire someone to replace her.

The employee asked the employer whether she could perform some duties for him remotely. The employer agreed to try this arrangement if documents could be transmitted securely. The employee and the employer agreed that the number of hours of work each week this arrangement would generate for the employee would be approximately five.

The employee and employer implemented the arrangement, but it became apparent after a few weeks that documents could not be transmitted securely, and they agreed on July 21, 2010, to discontinue it. The employee did not perform services for the employer after this date.

The employee made a personal decision which resulted in the reduction, and then elimination, of hours of work which would have been available to her with the employer. By operation of Wis. Stat. § 108.04(7m), this is a quit, and there is no exception to the quit disqualification which would apply.

The remaining question, and the one the employee focuses on in her petition, is whether the employee should be required to repay the benefits she received for which she was not eligible.

Wisconsin Statutes § 108.22(8)(c) provides that repayment of overpaid benefits will only be waived if the overpayment:

(1) was due to department error, and
(2) was without fault, false statement, or misrepresentation on
behalf of the employee/claimant.

The employee attributes the overpayment to misinformation she received from the department, i.e., to department error.

Wis. Stat. § 108.02(10e) defines "departmental error" as an error made by the department in computing or paying benefits resulting from

(a) A mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or
(b) Misinformation provided to a claimant by the department, on which the claimant relied.

The employee argues that, when she continued to claim benefits after her voluntary reduction in hours, she did so in reliance upon information provided to her on two occasions by claims specialists, and it is this reliance which led to the overpayment.

In her testimony, the employee stated as follows in this regard:

When I knew I would be moving to Plover, I called the unemployment office on two occasions and asked what effect that would have and what I needed to do in order to continue to file. In both cases, I was told to continue to file and as long as I worked a certain number of hours per week, the [benefits] would continue and I would not have any issues. I did not tell the department that I had voluntarily reduced my hours. I just said that the arrangement was changing and I would be working remotely, so the hours would be less. Nobody ever questioned me as to whether this was voluntary when the situation was discussed.

The question of whether this is sufficient to establish that the department provided misinformation to the employee is a close one.

On the one hand, the employee concedes she did not specifically indicate to the claims specialists that she had made a personal decision to move, and this move precipitated a significant reduction in the number of hours she would be available to work for the employer.

On the other hand, this should have been implicit from the information the employee provided to the claims specialists, i.e., she was moving to Plover from Madison, and, as a result, her work arrangement with the employer would be changing and she would be working fewer hours.

On balance, the voluntariness of the reduction in the employee's hours was implicit from the facts supplied by the employee to the claims specialists, and the department's failure to alert her to the effect this would have upon her eligibility for benefits constitutes misinformation, within the meaning of Wis. Stat. § 108.02(10e)(b), upon which the employee reasonably relied to continue to claim benefits for which she was not eligible.

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