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

CHARLENE L FITZGERALD, Claimant

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11005539MD


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 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 filed a claim for extended benefits (EB) and the department informed the applicant that she was required to do an "active, systematic and sustained" search for "suitable" work and that work search activity for each week must be recorded and submitted to the department for review. In weeks 35 through 38 of 2011, the claimant failed to submit evidence of a work search to the department. The issue to be decided is whether the claimant made a search for suitable work or presented tangible evidence on a weekly basis to the department to establish that a reasonable search for suitable work was made in the weeks in question.

The claimant was mailed a Weekly Work Search Notice for Wisconsin Extended Benefits on August 6, 2011, which clearly states at the bottom, "failure to do the required search for a week that has been claimed will result in an indefinite disqualification of the EB benefits. There is no good cause for failing to make the required work search during each week in which EB is claimed."

The claimant in this case testified that in weeks 35 through 38 of 2011, she did a work search. The claimant believed that she provided information about the work search at the time, but was not certain because her brother was very ill and she needed to provide assistance because he had no family. On November 8, 2011, the department sent the claimant a letter informing her that she failed to provide work search forms for weeks ending August 27 (week 35), September 3 (week 36), September 10 (week 37), and that one or both of the contacts for week ending September 17, 2011, (week 38) were not adequate because she failed to provide a complete address or phone number. The claimant provided a work search form dated November 14, 2011, indicating that she looked for work at two different employers during week 38. She contacted Citgo Quickmart at 1016 North Sherman Avenue in Madison, and included a telephone number for that employer. She also looked for work at Players Sport Grill at 2012 Winnebago Street in Madison, and listed a contact person and a phone number. She had submitted that information earlier but had provided an incomplete address and an incomplete phone number. Thus, the claimant provided sufficient information to establish that she looked for work in week 38 of 2011.

The claimant also provided information that during week 35 of 2011, or week ending August 27, she looked for work on August 23 at Old Deerfield Antiques Mall at 37 North Main Street in Deerfield. She provided a phone number and a contact person. On August 25, 2011, she looked for work at Family Dollar at 1870 East Washington, Madison, Wisconsin. She provided a phone number for the employer. This information would allow the department to contact these employers in order to verify the claimant's assertion that she looked for work there.

Wisconsin Stat. § 108.141(3g)(c) provides:

A claimant shall make a systematic and sustained effort to obtain work and provide tangible evidence thereof to the department for each week for which the claimant files a claim for extended benefits. If a claimant fails to make the required effort to obtain work or to provide tangible evidence thereof, on a weekly basis, he or she is ineligible to receive extended benefits. . .

The commission concludes that the words "on a weekly basis" apply to the work search. The statutory language is ambiguous with respect to whether a claimant only needs to make the work search each week, or whether a claimant needs to both search for work and provide evidence to the department each week. See Andrew R. Reynolds, UI Dec. Hearing No. 10405049AP, (LIRC April 19, 2011). Thus, the commission is satisfied that the claimant made a systematic and sustained effort to obtain work during weeks 35 and 38 of 2011, and provided tangible evidence to the department of that search.

However, the claimant has failed to provide satisfactory evidence that she performed a work search during weeks 36 and 37 of 2011. As a result, she is ineligible to receive extended benefits for each week in which the failure occurred. Wis. Stat. § 108.141(3g)(c ).

Having determined that the claimant is ineligible for benefits because she failed to meet the statutory requirement to make a required work search during each week in which extended benefits (EB) are claimed, 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 claimant has received benefits totaling $440, to which she is not entitled, given the findings and conclusions above. The overpayment was not caused by any departmental error and repayment of the benefits cannot be waived.

The commission therefore finds that in weeks 36 and 37 of 2011, the claimant failed to make the required search for suitable work, within the meaning of Wis. Stat. § 108.141(3g).

The commission therefore finds that, in weeks 35 and 38 of 2011, the claimant made a systematic and sustained search for work and provided tangible evidence of that work search to the department, within the meaning of Wis. Stat. § 108.141(3g)(c).

DECISION

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the claimant is ineligible for extended benefits beginning in week 36 of 2011, and until she has been employed during at least four subsequent weeks in employment or other work covered by the unemployment insurance law and earns wages for such work equal to four times her weekly extended benefit rate. The claimant is required to repay the sum of $440 to the unemployment reserve fund.

Dated and mailed April 27, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

 

fitzgch . urr : 145 : 5


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