GAIL M DUGENSKE, Employee

NEW HAVEN OF OSHKOSH, Employer

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:

The employee worked for about six years for the employer, an assisted living facility, as a certified nursing assistant. Her last day of work was August 19, 2012 (week 34). She initiated a claim for benefits in week 35 of 2012.

Prior to January of 2012 the employee worked full time for the employer. In January of 2012 the employee returned to work for the employer following a 12-week maternity leave. Thereafter, the employee worked only part time at her request. In March of 2012 the employee's infant son was diagnosed with diabetes mellitus, a condition which requires that he receive multiple insulin injections and blood sugar tests each day. After this diagnosis was made, the employee requested that the employer further reduce her hours. She worked only on alternate weekends thereafter.

The employee's fianc, who is the father of her infant child, works from 6:30 a.m. until 3:30 p.m. In August of 2012 the employer asked the employee to work second shift, beginning at 3:30 p.m. The employee told the employer she could not do so, but offered to start at 4:00 p.m., after her fianc returned from work. The employer stated this was not possible. The employment relationship terminated at that point.

The issue to be decided is whether the employee was able to work and available for work in her labor market as of week 35 of 2012.

Wisconsin Stat. § 108.04(2) requires that a claimant maintain an attachment to the labor market and that she be ready to perform full-time suitable work in her labor market area. The term "full-time" work is defined to mean "work which is performed for 32 or more hours in a week." Wis. Admin. Code § DWD 100.02(28). A claimant is not considered to be available for suitable work if she has withdrawn from the labor market by virtue of restrictions on her availability for work or on the wage she would accept. Wisconsin Admin. Code § 128.01(4)2. provides:

A claimant is considered to have withdrawn from the labor market if he or she is not available for full-time suitable work during the standard hours in which work is performed in the occupations in which the claimant usually works or has prior training or experience. In determining the standard hours in which work is performed in the occupations, the department shall include the hours and the shift that the claimant worked in an occupation in one or more previous jobs since the start of the claimant's base period. For purposes of this subdivision, a claimant whose availability is restricted by an immediate family member's medical or health condition requiring essential care that is uniquely and actually provided by the claimant is not considered to have withdrawn from the labor market, provided the claimant remains available for full-time suitable work, regardless of the shift or hours. (emphasis added)

In this case, the employee's availability for work is restricted by the fact that her child has a medical condition requiring essential care (multiple daily injections and blood sugar tests) that is uniquely and actually provided by the employee. Therefore, she is not required to be available for work during any particular shift, provided she is available for full-time work. The employee testified that she and her fianc share child care duties and that she is unable to work between the hours of 6:30 a.m. and 4:00 p.m., during which time her fianc is at work.  The employee is willing to work a second shift or third shift job, and is willing to work at least 32 hours a week. Since her separation from the employer, the employee has sought full-time work.

The commission therefore finds that in week 35 of 2012 the employee was able to work and available for work, within the meaning of Wis. Stat. § 108.04(2)(a), and Wis. Admin. Code § DWD 128.

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 36 of 2011, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed February 12, 2013

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

dugenga . urr : 164 : 9

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge had no demeanor impressions to impart, but indicated that he did not find the employee's testimony credible because it appeared she had given no thought to full-time work and because her testimony was "all over the place" about the hours of work she would accept. The commission disagrees with this assessment. The employee originally testified that she was willing to work "at least 24-32 hours" a week. For purposes of UI eligibility, 32 hours a week constitutes full-time work. When pressed by the administrative law judge as to why she did not testify that she was willing to work 40 hours a week, the employee indicated that she was available for 40 hours a week. However, the employee is not required to be available for 40 hours of work each week in order to be considered available for full-time work. The employee was willing to work a second shift job for the employer, provided she could start after 4:00 p.m., and the commission sees no reason to doubt that she would be willing to work 32 or more hours, as long she could do so around the needs of her infant child.

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