TYLER J JONET, Claimant
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:
The claimant has worked for several years as a volunteer fire fighter for a town fire department. The claimant initiated a claim for unemployment benefits on
October 13, 2008 (week 41), after being laid off from full-time employment. His weekly benefit rate was $226.00.
The claimant performs his volunteer fire fighter work on an on-call basis. He is paid $12.00 per hour for each call. The fire department keeps track of the claimant's fire calls and the amount of time he spends on each call. The claimant is paid once per year for responding to fire calls. The claimant also performs bookkeeping duties related to the fire department's fundraising activities. He is paid $270.00 annually for that work.
When the claimant opened his claim for benefits, he asked a claims specialist if he needed to report his wages from the fire department on his weekly claim certifications. He told the claims specialist that he was a volunteer. The claims specialist told the claimant that he did not have to report his fire department earnings as wages.
Later, the department learned that the claimant performed bookkeeping services for the fire department in addition to his volunteer fire fighter services. The department issued a determination dated November 19, 2010, which held that all payments the claimant earned from the fire department for his services in
weeks 41 through 52 of 2008 and weeks 1 through 43 of 2009 were wages for purposes of calculating the claimant's eligibility for benefits. The determination resulted in an overpayment of $1,161.00.
The issue before the commission is whether all payments earned by the claimant from the fire department must be reported as wages on the claimant's weekly claim certifications and used in calculating the claimant's eligibility for partial unemployment benefits.
Wisconsin Stat. § 108.05(3)(a) provides for reduction in benefit payments if the employee earns wages in a given week. Benefits for partial unemployment are calculated by disregarding the first $30.00 of earned wages and reducing the weekly benefit rate by 67 percent of the remaining wages. For purposes of Wis. Stat. § 108.05(3)(a), "wages" excludes "any amount that a claimant earns for services performed as a volunteer fire fighter."
In this case, the claimant earned $5.19 per week ($270/52 weeks = $5.19 per week) in weeks 41 through 52 of 2008 and weeks 1 through 43 of 2009 for performing bookkeeping duties related to the fire department's fundraising activities. All other payments that the claimant earned from the fire department in those weeks were for services performed as a volunteer fire fighter. Applying the plain language of Wis. Stat. § 108.05(3), those payments are excluded as wages for purposes of calculating the claimant's weekly benefit payment under the partial benefits formula.
According to department records, in week 41 of 2008, the first week of his claim, the claimant earned $192.00 from his former employer, plus $194.13 from the fire department. Of the amount earned from the fire department, only $5.19 may be included as wages when calculating the claimant's partial benefits payment. Thus, in week 41 of 2008, for unemployment insurance purposes, the claimant earned $197.19 and was entitled to a benefit payment of $113.00 ($197.19 - $30 x .67 subtracted from $226). The claimant had been paid benefits of $117.00 for that week, resulting in an overpayment of $4.00. The overpayment was due in whole or part to the claimant's failure to report his earnings for non-fire fighter services to the department on his weekly claim certification. There was no department error, because the information provided by the claims specialist to the claimant concerning services performed as a volunteer fire fighter was correct. The claimant did not inform the claims specialist that he also received payments for performing bookkeeping services.
In weeks 42 through 52 of 2008 and weeks 1 through 43 of 2009, the claimant received full weekly benefits of $226.00. Benefits for partial unemployment are calculated by disregarding the first $30.00 of earned wages, which, for the claimant, were $5.19 per week. Consequently, the claimant was eligible for and entitled to full benefits in those weeks, if otherwise qualified.(1)
The commission therefore finds that in weeks 41 through 52 of 2008 and weeks 1 through 43 of 2009 the claimant earned $5.19 per week for bookkeeping services, which are wages for partial benefit purposes, within the meaning of Wis. Stat.
§ 108.05(3)(a).
The commission further finds that in weeks 41 through 52 of 2008 and weeks 1 through 43 of 2009 the claimant earned remuneration for services performed as a volunteer fire fighter, which is excluded as wages for partial benefit purposes, within the meaning of Wis. Stat. § 108.05(3)(a).
The commission further finds that for week 41 of 2008 the claimant was paid benefits in the amount of $4.00, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of benefit recovery is not required because the overpayment was not the result of department error and resulted in whole or part from the fault of the employee, as provided in Wis. Stat. § 108.04(13)(c) and (f).
The decision of the administrative law judge is reversed in part and affirmed in part. Accordingly, the claimant is not required to report payments earned for services performed as a volunteer fire fighter as wages when filing his weekly claim certifications. The claimant is required to repay the sum of $4.00 to the Unemployment Reserve Fund.
Dated and mailed October 26, 2011
jonetty . urr : 152 : 2
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is as a matter of law and does not depend on credibility.
In the appeal tribunal decision, the ALJ cited the commission's decision in Baker v. County of Marquette, UI Dec. Hearing No. 01003745BO (LIRC Dec. 20, 2001), in support of her legal conclusion that all monies received by the claimant from the fire department must be considered wages. However, the issue in Baker was whether the claimant's services were performed in excluded employment. The employer had argued that the exclusion found in Wis. Stat. § 108.02(15)(f) applied to volunteer fire fighters. The commission disagreed, explaining that the exclusion only applied to individuals who perform services on a temporary basis. While the work of a volunteer fire fighter may be occasional, it is on-going, not temporary. In this case, the issue is whether the claimant's payments from the fire department must be reported as wages on the claimant's weekly claim certifications. It is an issue distinctly different from the issue of whether services were performed in excluded employment.
NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state, or to the federal government.
Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.
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