JOSHUA D SCHULTZ, Employee

SAPUTO CHEESE USA INC, 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 makes the following:

The employee performs services as a mozzarella packager for the employer, a cheese manufacturer.

The employee works on the third shift. The employee worked early in the morning on October 24, 2010. All workers were laid off October 25 through 28. The employee was scheduled to work from 9:00 p.m. on October 29 through 7:00 a.m. on October 30 and from 9:00 p.m. on October 30 through 7:00 a.m. on October 31.

The employee worked just over two hours on October 29. His supervisor sent him to the doctor because it was believed that he had pink eye. The doctor confirmed that he had pink eye. Because he had pink eye the employee was not able to work for the employer. He did not report to work at 9:00 p.m. on October 30 because the pink eye had transferred to his other eye. The employee missed more than 16 hours of work in week 44 of 2010.

The first issue to be decided is whether the employee was given due notice of work available but was unavailable for the work or was on a leave of absence or whether the employee's employment was suspended because the employee was unable to do, or unavailable for, suitable work otherwise available with the employer and whether the employee was able to work and available for work in his labor market.

The employee was not allowed to work during the week ending October 30, due to his pink eye. Therefore, it must be held that his employment was suspended because he was unable to work for the employer pursuant to Wis. Stat. § 108.04(1)(b)1. However, the employee's inability to work for the employer did not translate in an inability to work in his labor market. While the employee's condition may have limited his opportunities to work in, for example, food manufacturing or health/elderly/day care, the employee would still be able to perform any number of suitable positions in his labor market.

The commission therefore finds that in week 44 of 2010, the employee's employment was suspended because he was unable to perform his work for the employer, but that he was able to work and available for work in his labor market, within the meaning of Wis. Stat. § 108.04(1)(b)1.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits in week 44 of 2010, if he is otherwise qualified.

Dated and mailed May 13, 2011
schuljo . urr : 132 : 1 AA 120 : AA 240 :

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility. The commission's reversal is not based on credibility. The ALJ correctly found that this was a (1)(b)1. suspension of the employee's employment. However, the ALJ found that, because the employee missed more than 16 hours in the week, he was ineligible for benefits. That is incorrect. Under (1)(b)1. an employee whose employment is suspended because he is unable to work is eligible for benefits if he can work on the general labor market. The employee can work in other jobs even though he had pink eye.

The number of hours missed in a week comes into play under (1)(b) only if the employee is not able to work on the general labor market. In such case, if the employee misses 16 hours of work or less in the first week of the suspension, even though he is not generally able to work, he is eligible for benefits. However, benefits are reduced by wages that could have been earned. See Wis. Stat. § 108.04(1)(b)2.

Under the work available provision, Wis. Stat. § 108.04(1)(a), an employee is ineligible for any benefits if the employee misses more than 16 hours of work available. There is no parallel provision under (1)(b). This is not a work available issue because the employer chose not to provide the employee work given his medical condition and, therefore, work was not "actually available" to the employee.

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uploaded 2011/08/03