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

SCOTT I SCHEDLER, Employee

DPH DAS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10611232MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for 31 years as a supply chain manager for Delphi Automotive Systems. He lost his job in August of 2008 when Delphi Automotive Systems closed its plant in Oak Creek, Wisconsin.

The issue to be decided is whether the employee was receiving a pension payment as of week 44 of 2008 and, if so, what portion of those payments should be treated as deductible income for any week claimed.

The employee began a valid new claim in week 44 of 2008. At that time Delphi Automotive Systems was a base period employer. The employee claimed benefits in weeks 44 though 49 of 2008. His benefit year ended in week 43 of 2009.

On December 12, 2008, the department issued an initial determination finding that the employee was receiving a pension payment from Delphi Automotive Systems in the amount of $2,897.59 per month and that $2,798.19 of that payment had been financed by Delphi Automotive Systems. As a result, the employee's weekly UI benefits were reduced by including the amount of $645.82 as wages.

After week 43 of 2009, the employee next began a valid new claim in week 37 of 2010. At that time, Delphi Automotive Systems was no longer a base period employer.

The employee does not deny that he was receiving a pension as of week 44 of 2008 or the amount of the pension as of that week. Pursuant to Wis. Stat. § 108.05(7), the employee's UI benefits must be reduced based on his receipt of such pension.

The commission therefore finds that as of week 44 of 2008, the employee was actually or constructively receiving a pension payment that when apportioned, reduced, and calculated on a weekly basis amounted to $645.82. As a result, benefits otherwise payable for a week of partial or total unemployment are reduced by that amount, within the meaning of Wis. Stat. § 108.05(7).

The commission further finds that, as of week 37 of 2010, the employee was no longer receiving a pension from a base period employer within the meaning of Wis. Stat. § 108.05(7).

DECISION

The decision of the administrative law judge is modified to conform to the above findings and, as modified, is affirmed. Accordingly, as of week 44 of 2008, benefits otherwise payable for any week of partial or total unemployment are reduced by $645.82. As of week 37 of 2010, the employee is eligible for benefits without reduction, if otherwise qualified.

Dated and mailed June 16, 2011
schedsc . urr : 132 : 1 UW 980

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employee's position at the hearing was that because of a Qualified Domestic Relations Order which awarded 40% of his pension to his former wife, that amount should not be considered actually or constructively received by him. The commission need not resolve that issue as, at the time the QDRO was in effect and the claimant was filing for benefits, Delphi Automotive Systems was no longer a base period employer.(1)

It appears to the commission based on its review of Department records that the Department has continued to reduce the employee's benefits despite the fact that Delphi Automotive Systems is no longer a base period employer.(2) For that reason, the commission has made the additional finding that as of week 37 of 2010, no reduction in benefits should be occurring based on the employee's receipt of a pension from Delphi Automotive Systems.



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uploaded 2011/08/15


Footnotes:

(1)( Back ) The commission notes that in Benjamin Weiher, UI Dec. Hearing No. 01601369RC (LIRC May 17, 2001, the commission found that the amount assigned to the claimant's former spouse under a QDRO was actually or constructively received by the claimant. In 2007, the Department changed its policy to provide that the amount assigned to a former spouse under a QDRO was not considered constructively or actually received by a claimant. The resolution of this case makes it unnecessary for the commission to decide whether to reconsider its decision in Weiher based on the Department's change of policy.

(2)( Back ) The reduction is continuing despite comments appearing on the department's TISQ screen, made by two different department workers, one on September 14, 2010 and one on March 13, 2011, noting that there is no deductible income issue because Delphi Automotive Systems is not a base period employer.