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

KORY M WARRINGTON, Employee

CABELA'S WHOLESALE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12000730MW


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 has worked since September 2008 as a freight handler and stocker in the warehouse of a large specialty retailer and direct marketer of hunting, fishing, camping, and related outdoor merchandise. The employee typically works 40 hours per week for the employer on the first shift.

The employee initiated a claim for unemployment benefits on May 4, 2009 (week 19), because he was working fewer hours. The employee received partial benefits through week 41 of 2009, the week ending October 10, 2009.

After being laid off by the employer in January 2011, the employee initiated a new claim for benefits. He received benefits for weeks 4 through 33 of 2011, the week ending August 13, 2011.

The employee was again laid off by the employer in January 2012. He initiated a new claim for benefits on January 19, 2012 (week 3). The department questioned his eligibility for benefits based on his status as a student.

The employee has been attending Southwest Wisconsin Technical College (SWTC) since the spring 2011 semester. He is pursuing a two-year electrical mechanical technologies degree. The employee had previously worked as an aviation technician in the U.S. Navy, troubleshooting electrical problems with planes. He had six months of classroom training and two years of on-the-job training to perform his duties. The employee worked as an aviation technician for five years. After obtaining his electrical mechanical technologies degree from SWTC, the employee hopes to obtain work with a company which will provide him with financial assistance to obtain a four-year degree.

The employee's spring 2012 semester began on January 17, 2012 (week 3). He is enrolled in 13 credits and attends classes on Mondays from 10:30 a.m. to
2:30 p.m., Tuesdays from 7:30 a.m. to 12:30 p.m., Wednesdays from 8:30 a.m. to 3:30 p.m., and Thursdays from 7:30 a.m. to 3:00 p.m.

The department issued a determination on February 11, 2012, denying the employee's claim for unemployment benefits. The department found that the employee had withdrawn from the labor market because he is attending school during regular daytime hours and is not in approved training. Specifically, the department found that, although the claimant is enrolled at an approved institution, he is not in approved training because he intends to continue on to a four-year school after receiving his two-year degree. Benefits were denied until the employee establishes that he is able and available for suitable work. Upon appeal, an administrative law judge affirmed the department's determination.

The issue before the commission is whether the employee's school attendance renders him ineligible for unemployment benefits.

Wisconsin Stat. § 108.04(2) provides in relevant part:

(2) GENERAL QUALIFYING REQUIREMENTS. (a) Except as provided in par. (b) and sub. (16)(am) and (b) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week only if:

1. The individual is able to work and available for work during that week...

Wisconsin Stat. § 108.04(16) provides in relevant part:

(16) APPROVED TRAINING. (a) In this subsection, "approved training" means:

1. A course of vocational training or basic education which is a prerequisite to such training in which an individual is enrolled if:

a. The course is expected to increase the individual's opportunities to obtain employment;

b. The course is given by a school established under s. 38.02 or another training institution approved by the department;

c. The individual is enrolled full time as determined by the training institution;

d. The course does not grant substantial credit leading to a bachelor's or higher degree; and

e. The individual is attending regularly and making satisfactory progress in the course.

...

(am) The department shall not apply any benefit reduction or disqualification under sub. (1)(a), (2)(a), or (8), or s. 108.141(3g)(a) or (c) to any otherwise eligible individual for any week as a result of the individual's enrollment in approved training.

...

(e) The department shall charge to the fund's balancing account the cost of benefits paid to an individual that are otherwise chargeable to the account of an employer that is subject to the contribution requirements of ss. 108.17 and 108.18 if the individual receives benefits based on the application of par. (am)...

The appeal tribunal found that, while the employee may be enrolled in approved training, he is nonetheless ineligible for benefits because he is not available for full-time work as required by Wis. Stat. § 108.04(2)(a). The commission disagrees with the appeal tribunal's application of the law in this case to the facts and, therefore, reverses the appeal tribunal decision.

A claimant who is enrolled in approved training is not subject to the general able and available requirements of Wis. Stat. § 108.04(2)(a). See, Wis. Stat. § 108.04(16)(am); Johnson v. Cambridge State Bank, UI Dec. Hearing No. 92005527MD (LIRC Feb. 10, 1993). The employee's course of study meets the definition of approved training, as set forth in Wis. Stat. § 108.04(16)(a).

The department's initial determination was based on the fact that the employee expressed an intent to obtain a four-year degree. It has been the department's policy to consider a claimant's intent when determining whether a course of study is approved training. However, as the commission has pointed out in previous decisions, intent is not part of the approved training statute. The plain language of the statute requires that a course of study not grant substantial credit leading to a bachelor's or higher degree. Wis. Stat. § 108.04(16)(a)1.d. Therefore, regardless of any mention by a claimant of a desire to obtain a bachelor's or higher degree, the department must determine whether any of the credits a claimant earns in his or her coursework will transfer to a college or university and whether the amount of transferable credits earned is substantial.

The legislature encourages education and retraining of workers during their unemployment. Wis. Stat. § 108.01(2); Murphy v. LIRC and Northwest Hardwoods, Inc., 183 Wis. 2d 205 (Ct. App. 1994). The approved training statute allows the payment of unemployment benefits to individuals who are participating in non-academic, vocational training, if that training provides the individual with technical, skill-based job tools that can readily be used in the workplace upon completion, if the individual is participating in the training on a full-time basis, and if the individual is making satisfactory progress. The department may not reduce or deny benefits to individuals who are participating in approved training for not meeting the general able and available requirements or for refusing suitable work offered to them. The cost of benefits paid to individuals in approved training is charged to the unemployment reserve fund's balancing account. The cost is not charged to the accounts of contribution employers.

Here, the employee is receiving vocational training in electrical mechanical technologies at a state technical college. There is nothing in the record to suggest that the employee's coursework grants substantial credit leading to a four-year degree. Neither the adjudicator nor the administrative law judge asked what classes the employee has taken and what credits, if any, would transfer to a higher degree. It is expected that a two-year technical degree will increase the employee's opportunities to obtain gainful employment, and the employee has five years of experience performing similar work. The employee has remained attached to the labor market while enrolled in classes at SWTC and continues to work for the employer when the employer has work for him to perform. The employee plans to remain in the labor market upon completion of his associate's degree.

The commission therefore finds that, beginning in week 3 of 2012, the employee was able to work and available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Stat. § 108.04(16)(a) and Wis. Admin. Code ch. DWD 128, because individuals in approved training are exempt from the able and available requirements of Wis. Stat. § 108.04(2)(a).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits as of week 3 of 2012, if he is otherwise qualified.

Benefits paid to the employee for weeks in which he is exempt from the general able and available requirements due to his enrollment in approved training will be charged to the unemployment reserve fund's balancing account, pursuant to Wis. Stat. § 108.04(16)(e).

Dated and Mailed May 10, 2012

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. The commission does not reverse the appeal tribunal decision based on a differing assessment of witness credibility or demeanor but reverses as a matter of law.

The commission did not deem it necessary for the parties to submit briefs, as requested by the employee. Thus, no briefing schedule was set.


warriko3 . urr : 152 : 5

cc: Attorney Lindsay Kearl

 


 

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