P O BOX 8126, MADISON, WI 53708-8126



Hearing No. 13607416MW
and 13607417MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued two appeal tribunal decisions in this matter. The employee filed a timely petition for review.

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 began working for the employer, a temporary staffing agency, in March 2013. The employer reported on a weekly earnings audit that the employee performed services and earned wages in weeks 12 through 19, 21, 22, 24, 27, and 29 through 32 of 2013. When filing claims for unemployment benefits for those weeks, the employee did not report that he worked or earned wages.

Claimants who file for unemployment insurance benefits are responsible for correctly and completely reporting information for each week they claim benefits, because benefits are initially paid based on the information claimants provide. Claimants who conceal information from the department when filing for benefits may be subject to overpayments and penalties. For unemployment insurance purposes, conceal means "to intentionally mislead or defraud the department by withholding or hiding information or making a false statement or misrepresentation."(1)

A claimant who conceals work performed or wages earned when filing a weekly claim certification is ineligible to receive benefits for the week claimed.(2) In addition, a claimant who conceals work performed, wages earned, or another material fact concerning benefits eligibility when filing a weekly claim certification is ineligible for benefits in an amount equivalent to two, four, or eight times the claimant's weekly benefit rate for each act of concealment.(3) This ineligibility is applied against benefits and weeks of eligibility for which the claimant would otherwise be eligible after the week of concealment.(4) Furthermore, consistent with federal directives, the department assesses a penalty against the claimant in an amount equal to 15 percent of the benefits erroneously paid to the claimant as a result of one or more acts of concealment.(5)

On September 18, 2013, the department issued two determinations finding that, when filing for benefits for weeks 12 through 19, 21, 22, 24, 27, and 29 through 32 of 2013, the employee concealed work performed and wages earned from the employer. The first determination resulted in an overpayment of $2,595 and an overpayment penalty of $389.25. The second determination reduced the employee's benefit amount by $5,184 for benefits payable through September 14, 2019.

The employee appealed the department's determinations. At the hearing before the ALJ, the employee did not dispute that he performed work in the weeks at issue or that he earned the wages reported by the employer. The employee testified that he was confused by Question No. 4, because, in the past, when he would answer "Yes" to the "Have you worked?" question, his claim would get rejected and he would have to call in to the department. The employee understood from speaking with a department representative that he was not to answer "Yes" to that question. The employee misunderstood what he was told. The employee had never before "filed for unemployment through Manpower" and made a mistake.

The ALJ affirmed the department's determinations, finding that, although the employee may have misunderstood what a department representative told him about reporting his wages, the employee has the duty to know and understand what information is required of him when filing for benefits. The employee was found to have made a conscious choice not to accurately answer the question concerning whether he worked.

The employee petitioned for commission review. The issue to be decided is whether the employee concealed work performed and wages earned from the department when filing his weekly claim certifications for weeks 12 through 19, 21, 22, 24, 27, and 29 through 32 of 2013.

The burden to establish that a claimant concealed information is on the department.(6) As a form of fraud, concealment must be proven by clear, satisfactory, and convincing evidence.(7) Concealment will not be found where a claimant makes an honest mistake or misinterprets information received from the department.(8) Concealment requires an intent or design to receive benefits to which the claimant knows he or she is not entitled.(9)

The commission is not satisfied that concealment was established in this case. The evidence in the record does not show that the employee, when filing claims for the weeks at issue, had the requisite intent to receive benefits to which he knew he was not entitled.

The employee's actions and testimony revealed a fundamental misunderstanding of how the unemployment insurance program operates. Department records show that the employee was asked during the department's investigatory process to explain the discrepancy between the wages and hours of employment reported by the employer and the employee's failure to report any work or wages. The employee wrote that he "was not trying to claim for Manpower." He was filing against a previous employer only. The employee testified to the same.

The evidence reflects the employee's sincere belief that, when filing a weekly claim for benefits, he was filing directly against his former employer. Because the employee did not work for that employer in weeks 12 through 19, 21, 22, 24, 27, and 29 through 32 of 2013, he believed that he was answering Question No. 4, "During the week, did you work or will you receive sick pay, bonus pay, or commission?", correctly. The employee did not understand that he needed to answer that question in the affirmative for the weeks in which he worked for Manpower or for any employer. The employee was confused. He could not explain how the department would know to reduce his benefits if he did not inform the department that he was working, but he knew that his benefits were reduced. The employee had received a letter to that effect from the department. He thought his benefits had been reduced because he was working. The benefit reduction occurred two weeks after the employee began working for Manpower.

The employee stopped filing weekly claims for benefits after a department representative called him to follow up on his written explanation for the work and wages discrepancy. It was only after the department representative told the employee that he should have answered "Yes" to Question No. 4 for the weeks in which he worked for Manpower that the employee recognized that he had made a mistake. However, in reviewing the employee's testimony and reading the employee's petition for review, it is evident that the employee still does not understand why his work for Manpower is at issue.

The employee's actions in 2013 were consistent with his explanation of why he answered the "Did you work?" question on his weekly claim certifications in the way that he did. The employee misinterpreted information he received from the department in the past. He did not act with an intent or design to receive benefits to which he knew he was not entitled.

The ALJ found that, had the employee read the Handbook for Claimants when he received it, he would have found the instructions very clear. Yet, there is nothing in the record - testimony from the employee or any other evidence - concerning the employee's educational level or reading ability. The employee's payment history shows that he has never properly filed claims for partial unemployment benefits. Not all claimants are able to comprehend the contents of the Handbook for Claimants or to follow its instructions without assistance.

The commission therefore finds that, in weeks 12 through 19, 21, 22, 24, 27, and 29 through 32 of 2013, the employee worked and earned wages as reflected on the weekly earnings audit submitted by the employer, but he did not conceal from the department the work performed and the wages earned in those weeks, within the meaning of Wis. Stat. § 108.04(11), and is thus entitled to partial benefits for those weeks, pursuant to Wis. Stat. § 108.05(3).

The commission further finds that the employee's failure to report work and wages on his weekly claim certifications for weeks 12 through 19, 21, 22, 24, 27, and 29 through 32 of 2013, while not fraudulent, prevents waiver of recovery of the overpayment, under Wis. Stat. § 108.22(8)(c). The matter will be remanded to the department for a recalculation of the employee's overpayment in light of his eligibility for partial benefits for the weeks at issue.


The appeal tribunal decisions are reversed. Accordingly, the employee is entitled to partial unemployment insurance benefits weeks 12 through 19, 21, 22, 24, 27, and 29 through 32 of 2013. As a result of this decision, the employee's unemployment insurance benefit amount shall not be reduced, and there is no overpayment penalty.

This matter is remanded to the department for a calculation of the employee's entitlement to partial unemployment benefits for the weeks at issue and any corresponding overpayment.

Dated and mailed January 28, 2014

mauech_urr . doc : 152 : BR 330


/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: The commission did not consult with the ALJ before reversing the appeal tribunal decisions. The commission must only consult with an ALJ with respect to his or her impressions and conclusions regarding the credibility of witnesses in situations where the ALJ heard conflicting testimony and the commission reverses the ALJ and makes contrary findings. See Braun v. Indus. Comm'n, 36 Wis. 2d 48, 57, 153 N.W.2d 81 (1967). In this case, there was no conflicting testimony. The employee did not dispute that he performed work and earned wages in the weeks at issue. Additionally, the ALJ agreed with the employee's testimony that he misunderstood information received from the department about how to properly respond to questions asked of him on his weekly claim certifications.

Appealed to Circuit Court.  Affirmed, March 17, 2015.  [Circuit Court decision summary].

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(1)( Back ) Wis. Stat. § 108.04(11)(g).

(2)( Back ) Wis. Stat. § 108.05(3)(d).

(3)( Back ) Wis. Stat. § 108.04(11)(a), (b) and (be).

(4)( Back ) Wis. Stat. § 108.04(11)(bm).

(5)( Back ) Wis. Stat. § 108.04(11)(bh).

(6)( Back ) Scott G. Lynch, UI Dec. Hearing No. 10404406AP (LIRC Mar. 11, 2011); Holloway v. Mahler Enter., Inc., UI Dec. Hearing No. 11606291MW (LIRC Nov. 4, 2011).

(7)( Back ) Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 98, 98 N.W.2d 403 (1959); Schroeder v. Drees, 1 Wis. 2d 106, 112, 83 N.W.2d 707 (1957).

(8)( Back ) Joseph W. Hein, Jr., UI Dec. Hearing No. 00605374MW (LIRC Dec. 13, 2001); Scott G. Lynch, supra.

(9)( Back ) Karandjeff v. Cmty. Living Alliance Inc., UI Dec. Hearing No. 11611430MW (LIRC June 20, 2012); Nestor Gutierrez, UI Dec. Hearing No. 00005766MD (LIRC July 19, 2002). 

uploaded 2015/05/29