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


DEBORAH L FISCHER, Employe

SAFE HARBOR GROUP LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98001957JV


On April 15, 1998, the Department of Workforce Development issued an initial determination which held that the employe was not available for work due to her self-employment. The employe filed a timely request for hearing on the adverse initial determination, and hearing was held on May 28, 1998 in Janesville, Wisconsin before a department administrative law judge. On June 12, 1998, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for review of the adverse appeal tribunal decision. By October 30, 1998 order, the commission remanded the matter for additional hearing, which was held on December 14, 1998 in Janesville, Wisconsin. The matter is again before the commission, and now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during about one year as a computer program manager for a client of the employer, a computer specialist placement service. When the client did not renew the contract with the employer, the employe was laid off. Her last day of work was December 5, 1997. On December 8, 1997 (week 50), she applied for unemployment insurance.

During week 50 of 1997, the calendar week ending December 13, the employe set out to start her own computer website designing business. Thereafter, she had business cards printed. She put advertisements for her service on the World Wide Web. She used radio advertising. She purchased a laptop and desktop computers to use for creating and demonstrating her work. She set about to teach herself to use and understand JAVA and other computer language so that she could design websites for customers. In addition, the employe had asked both the employer and another employer for additional assignments after the employe's assignment with the employer ended on December 5, 1997. The employe also continued to look through the newspaper and make contacts in her field, in order to find work. This included checking job openings posted by computer companies and by the Wisconsin Job Service.

On or about February 2, 1998 (week 6), the employer offered an assignment to the employe, to design a website for the employer. The employe declined the offer because she was working on a project connected with her own business. The employe and employer were in contact again approximately two weeks later, at which time the employe still could not accept the assignment from the employer, and again because it would have conflicted with work the employe was performing in connection with the employe's business.

Wisconsin statute § 108.04(2)(a)1 requires that a claimant, to be eligible for unemployment insurance, be available for work and seeking suitable work. The work a claimant must be seeking, though, is work as an employe, not work for the employe's own business. If a claimant is working at his or her business to such an extent that the claimant must turn down offers of work from other employers, then the claimant does not meet the general availability for work requirement of Wis. Stat. § 108.04(2)(a)1. In the present case, through week 5 of 1998 the employe was both working at her business and available for work and seeking work as an employe. Beginning in week 6 of 1998, however, the employe no longer was available for work as an employe, as required by Wis. Stat. § 108.04(2)(a)1, and so is ineligible for unemployment insurance beginning in that week.

The commission therefore finds that, in weeks 50 of 1997 through 5 of 1998, the employe was able to work and available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a)1 and Chapter DWD 128 of the Wisconsin Administrative Code. The commission also finds, however, that beginning in week 6 of 1998, the employe was not able to work or available for suitable work, within the meaning of the above-cited statutory and administrative code provisions. The commission also finds that the employe was paid benefits in the amount of $205.00 per week for each of weeks 6 through 13 of 1998, totaling $1,640.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault, as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is affirmed in part and reversed in part. Accordingly, the employe is eligible for unemployment insurance through week 5 of 1998, if she is otherwise qualified. She is ineligible for unemployment insurance beginning in week 6 of 1998, and until she is again able to work and available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a)1. She must repay $1,640.00 to the Unemployment Reserve Fund.

Dated and mailed: February 16, 1999
fischde.urr : 105 : 1 AA 265

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission conferred with the administrative law judge, as indicated above. The commission's reversal of the appeal tribunal decision is not due to a differing credibility assessment from that made by the administrative law judge; rather, the administrative law judge, when he issued the June 12, 1998 decision in the case, did not have the benefit of testimony from the employer (which was obtained at the December 14, 1998 remand hearing).


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