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

PHILLIP A LONDON, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11600470MW


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 of the claimant, 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 claimant began working for a union roofing company in August 2010. The claimant was laid off for the winter on or about December 2, 2010. The claimant reopened his claim for unemployment benefits on December 10 (week 50) and reported that he was attending school. He also reported that he expected to be recalled by the employer.

The issue is whether, as of week 50 of 2010, the claimant was able to work and available for work in his labor market.

As part of his employment with the roofing company, the claimant was required to attend school full-time from Monday, December 27, 2010 (week 1), through Tuesday, January 18, 2011 (week 4). The claimant attended classes at an area technical college that were sponsored by the Southern Wisconsin Roofing and Waterproofing Joint Apprenticeship and Training Council. The claimant is enrolled in a four-year apprenticeship program through the Department of Workforce Development and is required to attend classes periodically. Other than his schooling in weeks 1 through 4 of 2011, the claimant had no restrictions on his ability to work or his availability for suitable work after being laid off by the employer.

In order for a claimant to be eligible for unemployment insurance benefits in any given week, the claimant must be able to work and available for work. For unemployment purposes, able to work means that the claimant has the physical and psychological ability to perform suitable work for which he is qualified. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant's labor market. In many cases, a claimant attending school on a full-time basis during first-shift hours is not considered available for work. However, a claimant in "approved training" under Wis. Stat. § 108.04(16) is not required to meet the general availability for work requirements for claimants.

In this case, the claimant was attending a training program as part of his apprenticeship program in weeks 1 through 4 of 2011. The Department of Workforce Development considers such training to be "approved training" under Wis. Stat. § 108.04(16). The department cannot deny benefits because a claimant is not available for work if the claimant is in approved training.

The commission therefore finds that, as of week 50 of 2010, the claimant was able to work and available for suitable work, within the meaning of Wis. Stat.
§ 108.04(2)(a).

The commission further finds that, in weeks 1 through 4 of 2011, the employee was in approved training, within the meaning of Wis. Stat. § 108.04(16)(a).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits in weeks 50 of 2010 through 4 of 2011, if otherwise qualified.(1)

Dated and Mailed August 29, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


londoph . urr : 152 : 1 AA 205

NOTE: The commission did not discuss witness demeanor with the ALJ. The commission's reversal is not based on credibility. The commission has reached a different legal conclusion than reached by the ALJ.



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uploaded 2011/09/13


Footnotes:

(1)( Back ) Department records show that the claimant was found to be able and available for full-time suitable work in his labor market as of week 5 of 2011.