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

ANDREW R REYNOLDS, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10405049AP


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 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

The department's determination held that in week 42 of 2009, the claimant failed to make a systematic and sustained search for suitable work, as required by Wis. Stat. § 108.141(3g)(c). As a result, extended benefits were suspended until the claimant works within at least four weeks in covered employment subsequent to week 42 of 2009 and earns wages for such work of at least $1,420, which is four times his weekly extended benefit rate.

The determination further found that the claimant had been overpaid extended unemployment insurance benefits of $362 that would have to be repaid to the department because the overpayment was not the result of any error by the department and/or was caused partially or wholly by the claimant. The determination further found that the claimant had been overpaid Federal Additional Compensation (FAC) benefits, which must be repaid, and that the claimant would receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding any amount of FAC benefits that must be repaid.

Department records show that the claimant initiated a claim for benefits for the week ending November 29, 2008 (week 48 of 2008), and that as of the week ending April 10, 2009 (week 15 of 2009), he qualified for and began receiving Extended Unemployment (EU) benefits. At or about that time, he was notified by the department that as a condition of EU benefit eligibility he would be required to make a "systematic and sustained" search for suitable work by directly contacting at least two employers each week. He was further instructed by the department at that time that his "work search activity for each week must be recorded and submitted to the Department for review," and that "failure to search for suitable work and provide evidence of your search will result in an indefinite disqualification of the extended benefits. . ."

During the calendar week of October 11 through 17, 2009 (week 42), the claimant directly contacted two employing units seeking employment. He had worked for each of those employing units in the past, and the respective job positions for which he submitted job applications to those employing units in week 42 (insurance agent trainer and insurance salesman) were apparently suitable for the claimant based on his past work experience and training with those same employing units. While the claimant contacted two employers, the claimant did not document or make any record of his contacts with those two employing units, nor did he submit to the department any record of his work search activities for week 42.

On January 29, 2010, the department mailed to the claimant a letter with an enclosed weekly work search log form, instructing the claimant to complete the work search log by recording thereon his work search activities for week 42 of 2009 (as well as for subsequent weeks) and to return the completed work search log to the department within seven days. The claimant did not complete the work search log form for week 42 and he did not provide the department with any verification of his work search activities for week 42 of 2009. Thereafter, on March 23, 2010, the department issued its determination suspending the claimant's eligibility for EU benefits.

The issue to be decided is whether the claimant made a systematic and sustained effort to obtain work in week 42 of 2009 and provided tangible evidence of that work search to the department.

Wis. Stat. § 108.141 is a permanent provision for extended unemployment insurance benefits that may be paid when certain economic triggers occur. The economic triggers needed to initiate an extended benefit period were met in early 2009, and EU benefits were first payable to qualified claimants beginning with week 9 of 2009 (the week beginning February 22, 2009). The claimant in this case qualified for and began receiving EU benefits as of week 15 of 2009.

Work search requirements change when a claimant is eligible for extended benefits. Wis. Stat. § 108.141(3g)(c) requires a claimant filing for EU benefits to make a systematic and sustained effort to obtain work and to provide tangible evidence of that work search each week, "on a weekly basis." There is no waiver of the work search requirement for individuals claiming EU benefits. If a claimant fails to make the required effort to obtain work on a weekly basis or to provide tangible evidence thereof, pursuant to Wis. Stat. § 108.141(3g)(c) he is ineligible to receive EU benefits for the week in which the failure occurs and for each week thereafter until he has again been employed during at least four subsequent weeks in covered employment and has earned wages for such work equal to at least four times his weekly extended benefit rate.

The claimant in this case credibly testified that in week 42 of 2009, he contacted two employing units directly to apply for suitable job positions, for which each of those employing units were taking applications and interviewing candidates. At the time of the hearing, he provided corroborating evidence to verify those work search activities by him in week 42 of 2009.

Wis. Stat. § 108.141(3g)(c) provides:

"A claimant shall make a systematic and sustained effort to obtain work and provide tangible evidence thereof to the department for each week for which the claimant files a claim for extended benefits. If a claimant fails to make the required effort to obtain work or to provide tangible evidence thereof, on a weekly basis, he or she is ineligible to receive extended benefits. . ."

The commission concludes that the words "on a weekly basis" apply to the work search. The statutory language is ambiguous with respect to whether a claimant only needs to make the work search each week, or whether a claimant needs to both search for work and provide evidence to the department each week.

The commission reaches this interpretation in part because the department's treatment of this situation and instructions to claimants indicate that the department will accept a work search log that was sent in late. The department sent the claimant Exhibit 4, on January 29, 2010 a letter which informs claimants they must make a work search for each week the claimant wants to receive extended benefits. It also informs workers that prior work search waivers are no longer in effect and describes in some detail the manner in which a work search is to be done. "Work search activity for each week must be recorded and submitted to the department for review. Be sure to keep a copy of your work search log for your records." It does inform claimants to mail the log on a weekly basis, but thereafter cautions people that failing to do the work search will result in indefinite disqualification. It also informs people that if they cannot do the work search they may want to skip filing for the week. It provides no similar warning about sending in the log on a weekly basis.

In addition, the department sent Exhibit 5, a letter dated January 29, 2010 (about 15 weeks after the week at issue, or week 42 of 2009) which says the department did not receive a copy of the work search record. The letter informs him he must rewrite his work search activity and submit it to the department. If he does not do this within seven days, he will have to meet the requalification requirements in order to be eligible. The letter does not require the claimant to explain why the department did not get his work search log. If the department did so, it would suggest that the department would only accept a late work search for some extraordinary reason, for example, that it was lost in the mail. Rather, the department gives the claimant seven days to get the log in or the requalification requirements will be imposed. Therefore, the department would accept a late work search log, as long as the claimant provided reliable documentation to back up the fact that he made the search. Department information available to claimants on the internet contains similar language. The department's instructions stress that a claimant must meet the requalification requirements for failing to do the work search and that a suspension will result until the claimant submits the work search record to the department. This makes sense in terms of the purpose of the statute, which is to ensure that a claimant made or makes a weekly work search. The work search log is only a way to verify that the search has been done during the week in question.

The claimant in this case provided information at the hearing about his work search and thus, the claimant has satisfied the requirement that he provide tangible evidence of his work search activities for week 42 of 2009.

The commission therefore finds that, in week 42 of 2009, the claimant made a systematic and sustained search for work and provided tangible evidence of that work search to the department, within the meaning of Wis. Stat. § 108.141(3g)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits beginning in week 42 of 2009, if otherwise qualified.

Dated and Mailed April 19, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ before reversing his decision. The commission did not reverse the ALJ based on witness credibility but rather, reversed the ALJ's decision as a matter of law.

CP 350


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