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

CAROL S LYNCH, Employee

KENNICOTT BROS CO, Employer

UNEMPLOYMENT INSURANCE DECISION
 Hearing No. 11607414MW


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 approximately five months as a delivery driver for the employer, a wholesaler of flowers and plants. Her last day of work was June 10, 2011 (week 24), when she quit.

On June 9, 2011, the employee submitted her voluntary resignation, effective the following day, to the employer because she had accepted an offer of work from another employer through her union. Her new position as an electrician offered a higher average weekly wage than what she had earned with the employer at issue. Shortly thereafter, the employee was informed by her new employer that the assignment was not yet ready and there was no work available for her to perform. The employee never performed work for that employer. Between July 25 and August 5, 2011 (weeks 31 and 32), the employee worked for another employer through her union.

The employee initiated an additional claim for unemployment benefits on June 13, 2011 (week 25), reporting that she was laid off by the employer at issue. She filed weekly claim certifications thereafter and received benefits in the amount of $363 for weeks 25 through 30 of 2011, totaling $1,452 for weeks 25 through 28 of 2011 and $726 for weeks 29 and 30 of 2011. The commission takes administrative notice of departmental records which indicate that the employee reported wages in the amount of $1,261 for weeks 31 and 32 of 2011. As such, the employee earned gross wages totaling $2,523 and requalified for benefits as of week 33 of 2011. Her weekly benefit rate was $363.

The issue to be decided is whether the employee's quitting was for any reason that would permit the immediate payment of unemployment benefits.

The statutes generally provide that a worker who voluntarily terminates employment will be ineligible for benefits. However, the employee may still be eligible for benefits if the quitting falls within a specific statutory exception permitting benefit payment. One such exception permits benefit payment to a worker who terminates employment in order to accept other employment, covered by the unemployment compensation statutes, which offered: an average weekly wage which was at least equal to that paid for the work which was terminated, the same or more hours of work, the opportunity for a significantly longer term of employment, or the opportunity to work significantly closer to the employee's domicile; and earns wages in the subsequent work equal to at least four times the employee's weekly benefit rate.

The commission has held: "Section 108.04(7)(L), Stats., states four characteristics of jobs which an employe[e] may quit their present job to take, and it states them in the disjunctive. If any one of them applies, the section is applicable." Steidl v. Chemotech Printing Supplies, Inc., UI Dec. Hearing No. 89602903MW (LIRC Aug. 10, 1989). In this case, the employee voluntarily terminated her employment to accept a position that paid a higher average weekly wage than what she had earned while working for the employer at issue. Therefore, the employee is eligible for unemployment benefits if she earned wages with the new employer equal to at least four times her weekly benefit rate. The employee admittedly never started working for the new employer; however, she began working for another employer on July 25, 2011 (week 31). Departmental records indicate that she earned sufficient wages in this employment to requalify for benefits as of the week ending August 13, 2011 (week 33). While the employee did not meet the statutory conditions set forth in Wis. Stat. § 108.04(7)(L), because she did not earn any wages in the subsequent work for which she quit her employment, the employee did meet the general quit requalification requirements as of week 33 of 2011.

Having determined that the employee is ineligible for benefits during weeks 24 through 32 of 2011, it must also be determined whether she has received any benefits in error, the amount of those overpaid benefits, and whether those benefits must be repaid to the department.

The employee received benefits totaling $2,178 (paid for weeks 25 through 30 of 2011), to which she is not entitled given the findings and conclusions above. Generally, an employee who receives unemployment insurance benefits in error is required to repay those benefits to the department. However, current law provides that recovery of the overpaid benefits shall be waived if the overpayment occurred as the result of departmental error and if the overpayment was not caused by the employee's fault or by a false statement or misrepresentation by the employee.

Departmental error is defined as an error relating to computing or paying benefits, resulting from mathematical mistake, misapplication or misinterpretation of law or mistake of evidentiary fact; or misinformation provided by the department to an employee, on which the employee relied. The payment of benefits for weeks 25 through 28 of 2011 was caused by the employee's failure to report that she quit her employment when she initiated her additional claim for benefits on June 13, 2011 (week 25). The initial determination held that that employee had been overpaid benefits in the amount of $1,452 (paid for weeks 25 through 28 of 2011) and was required to repay the overpayment. As such, the payment of benefits for weeks 25 through 28 of 2011 was not due to departmental error and the repayment of these benefits cannot be waived.

In contrast, the payment of benefits for weeks 29 and 30 of 2011 was the direct result of the appeal tribunal decision and the administrative law judge erroneously interpreted the statutory exception applicable in this case. It is irrelevant that the legislature chose not to insert the word "until" in Wis. Stat. § 108.04(7)(L). The language of this statutory subsection clearly reads:

(L) Paragraph (a) does not apply if the department determines that the employee terminated work to accept employment or other work covered by the unemployment insurance law of any state or the federal government, and earned wages in the subsequent work equal to at least 4 times the employee's weekly benefit rate. . . . (Emphasis added).

The requirement that the employee earn wages in the subsequent employment prior to qualifying for benefits is unambiguous. The record developed at the hearing did not establish that the employee met this statutory requirement. The employee cannot be found to be at fault for the overpayment for weeks 29 and 30 of 2011. Accordingly, the law dictates that the recovery of erroneously paid benefits for these weeks shall be waived.

The commission therefore finds that, in week 24 of 2011, the employee terminated work with the employer and not within any of the exceptions to Wis. Stat. § 108.04(7)(a), but that as of week 33 of 2011, at least four weeks had elapsed since the end of the week of quitting and the employee had earned wages for work actually performed in covered employment after the week of quitting equaling four times the weekly benefit rate which would have been paid had the quitting not occurred, within the meaning of that section.

The commission further finds that the employee was paid benefits in the amount of $1,452 (paid for weeks 25 through 28 of 2011), for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1) and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department and/or was caused partially or wholly by the employee, within the meaning of Wis. Stat. § 108.22(8)(a) and (c).

The commission further finds that, due to departmental error and not due to any action by the employee, the employee was paid benefits for weeks 29 and 30 of 2011 in the total amount of $726, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), but that recovery of the benefits paid shall be waived, within the meaning of Wis. Stat. § 108.22(8)(c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits in weeks 24 through 32 of 2011. The employee is eligible for benefits beginning in week 33 of 2011, if otherwise qualified. The employee is required to repay the overpayment amount of $1,452 (paid for weeks 25 through 28 of 2011). Recovery of the overpaid benefits for weeks 29 and 30 of 2011, in the amount of $726 is waived. If the employer is subject to the contribution requirements of the Wisconsin unemployment insurance law, any benefits payable to the employee based on work performed for the employer prior to the quitting will be charged to the fund's balancing account.

Dated and mailed January 25, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding witness credibility or demeanor prior to reversing the appeal tribunal decision. The commission accepts the administrative law judge's factual findings but disagrees with the legal conclusions reached based on those findings.


lynchca . urr : 102 : 2

cc: Tim Hanson
Attorney Susan Blesener

 


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