KIRK T KINCAID, Employee

MADISON TAXI, Employer

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

The commission has considered the employee's petition, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

Late petition

The appeal tribunal decision at issue was dated and mailed on May 14, 2015, and stated an appeal deadline of June 4, 2015. The employee's petition was faxed to the commission and received on June 15, 2015. In his petition, the employee explained that he had mailed a petition for review on May 22 and learned in a telephone call to the commission on June 10 that it was never received.

The commission accepts as true the employee's explanation that he mailed a petition for review in a timely manner but it never reached its intended destination. The employee has shown probable good cause that the reason for having failed to file a timely petition was beyond his control, within the meaning of Wis. Stat. § 108.09(6)(a). The employee's late petition for review is accepted.

Merits

The employee has worked as a part-time driver for the employer, a taxi company located in Madison, Wisconsin, since June 2014. He lived in Madison until October 2014, when he relocated to Oxford, which is about 70 miles from Madison. After moving to Oxford, the employee continued to work for the employer whenever he was in Madison. The employee did not have a set schedule; he worked when he was available.

The employee was laid off from his full-time job in late February 2015 and opened a claim for unemployment insurance benefits. During the week ending March 7, 2015 (week 10), the employer offered the employee a full-time job as a taxi driver. The employee refused the job offer, because it was not practicable due to the commuting distance from Oxford to Madison.

When the employee filed his weekly claim certification for week 10 of 2015, he answered "No" when asked, "Did you refuse any work that was offered to you?" He had, in fact, refused work that was offered to him during that week.

The employee explained that he did not report to the department that he had refused work offered to him during week 10 of 2015, because he "was not available to go to this work." The employee has filed for unemployment insurance benefits in the past, and he received and read the department's Handbook for Claimants. He has 13 years of education, including one year of college.

The department found that, by not reporting a work refusal, the employee concealed a material fact. 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, 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.(2)

The issues to be decided are whether the employee concealed on his claim certification for week 10 of 2015 that he had refused a job offer from the employer in that week and, if so, what penalty should be assessed.

Concealment may be established through direct evidence, such as an admission by the claimant that incorrect information was provided to the department with the intent to receive benefits to which the claimant was not entitled, or indirect evidence from which such intent can be inferred. Such inference may not always be satisfied by demonstrating that incorrect information was provided when filing a weekly benefit claim.(3) Concealment will not be found, for example, where a claimant makes an honest mistake, misinterprets information received from the department, or misunderstands his obligations and benefit rights under the unemployment insurance law.(4)

The employee in this case agreed that he refused an offer of work in week 10 of 2015 and that he did not report the same on his claim certification for that week. The employee contended that, in failing to report the job refusal, he did not conceal a material fact, because he felt that the question he answered - whether he had refused any work - "required more than a yes or no response." He contended that, while he refused work, he "did not refuse work that ]he] was available to go to." The employee claimed that he did not understand that he had to report all refusals to the department, whether or not he believed he could get to the job. He noted that the department subsequently found that he had personal good cause for refusing the employer's job offer because of the commuting distance.

The commission considered the arguments advanced by the employee at the hearing and in his petition for review and was not persuaded. The question the employee was asked on his weekly claim certification for week 10 of 2015 was whether, during the week being claimed, he refused any offer of work. The question was not whether the employee refused any offer of work he believed he had good cause to refuse. Instead of answering "Yes", that he had refused an offer of work, and explaining to the department later why he believed he had good cause for the refusal, the employee chose to simply answer "No." That was not a reasonable or defensible choice to make.

The employee argued that it is "only logical to assume" that the meaning of the question at issue is, "Did you refuse suitable work?", and that it is "fair to assume that a claimant who knows the work is not suitable would answer NO, because he understands the law." It is not fair to assume either of those things. The question asked of the employee on the weekly claim certification was clear and straightforward: "Did you refuse any work that was offered to you?" It does not require an analysis on the part of the employee as to whether the work was suitable or unsuitable; the term "any work" encompasses both.

The policy behind the unemployment insurance law was set forth decades ago in Roberts v. Ind. Comm., 2 Wis. 2d 399 (1957):

In brief, the purpose of this statute is to stabilize employment and to minimize the loss of income when an employee involuntarily is out of work through the fault or misfortune of the employer. The act was not enacted to provide relief in lieu of wages when reasonable work is available which the employee can but will not do.

The law therefore provides that, if an employee fails without good cause to accept suitable work when offered, the employee is ineligible to receive benefits until the employee earns wages after the week in which the failure occurs equal to at least 6 times the employee's weekly benefit rate in covered employment.(5) This is the same requalification requirement as that following a quit.

To determine whether an employee has good cause to refuse suitable work when offered, the department must look at whether the wages, hours (including arrangement and number), and other conditions of the work offered are prevailing for similar work in the employee's labor market area(6) and whether the employee, as a claimant for unemployment benefits, was not for any other reason justified in failing to accept the work. The law does not permit employees to decide for themselves whether, for unemployment insurance purposes, the work they refused was suitable or whether they had good cause to refuse the work offered and then, based on their decision, elect to report or not to report their job refusal to the department.

Contrary to another of the employee's arguments, the refusal of a job offer always raises an eligibility issue. As explained in Roberts, supra, benefits will not be paid "when reasonable work is available which the employee can but will not do." The department must investigate eligibility issues, including job refusals, and the investigations inevitably delay an employee's receipt of benefits. Here, by not reporting the job offer from the employer, the employee received benefit payments without delay. This benefitted the employee and provided him with the motivation to conceal, because, as he explained in his petition, he had court-ordered child support and necessary expenses to pay.

The commission therefore finds that, in week 10 of 2015, the employee concealed from the department a material fact relating to benefit eligibility, within the meaning of Wis. Stat. § 108.04(11)(a).

As explained above, a claimant who conceals a material fact concerning benefits eligibility 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. In this case, the ALJ assessed a concealment penalty of four times the employee's weekly benefit rate. That rate applies to each single act of concealment occurring after the date of the first determination of concealment.(7)

There is no explanation in the appeal tribunal decision as to why the ALJ assessed the penalty of four times the employee's weekly benefit rate. There is also no evidence in the record that the employee was previously determined to have concealed work, wages, or a material fact from the department. Consequently, a concealment penalty of two times the employee's weekly benefit rate will be assessed.

The commission further finds that, because the employee concealed from the department in week 10 of 2015 a material fact relating to benefit eligibility, within the meaning of Wis. Stat. § 108.04(11)(a), the employee's benefit eligibility shall be reduced by $460 ($230(8) x 2 x 1 act of concealment) in unemployment insurance benefits that become payable by April 3, 2012, pursuant to Wis. Stat.
§ 108.04(11)(be).

The employee's late petition is accepted for review. The appeal tribunal decision is modified to conform to the above findings of fact and conclusions of law and, as modified, is affirmed. Accordingly, the employee's benefit eligibility shall be reduced by $460 in unemployment insurance benefits that become payable by April 3, 2021, pursuant to Wis. Stat. § 108.04(11)(be).

Dated and mailed August 20, 2015

kincaki_urr . doc : 152 : PC 731 : BR 330 : PC 714

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In his petition for commission review, the employee expresses his dissatisfaction with the manner in which the ALJ held the hearing in this matter and with the decision. The employee implied that the ALJ was biased. After a thorough review of the record, the commission finds no reason to believe that the ALJ was biased against the employee. Further, the commission has made its own decision in the case based on the evidence in the record, and it has done so without bias.

cc: CALE PLAMANN

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

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

(2)( Back ) Wis. Stat. § 108.04(11)(be).

(3)( Back ) See, e.g., Hollett v. Shaffer, UI Dec. Hearing Nos. 13003690MW and 13003691MW (LIRC Apr. 30, 2014), aff'd, Wis. Dept. of Workforce Dev. v. Wis. Labor & Indus. Rev. Comm'n and Hollett, Case No. 14 CV 331 (Wis. Cir. Ct. Sauk Cnty. Jan. 22, 2015) (setting forth the standards and burden of proof for concealment).

(4)( Back ) See, e.g., id.; In re Scott Lynch, UI Dec. Hearing No. 10404409AP (LIRC Mar. 11, 2011); In re Joseph Hein, Jr., UI Dec. Hearing No. 00605374MW (LIRC Dec. 13, 2001).

(5)( Back ) Wis. Stat. § 108.04(8)(a).

(6)( Back ) Commuting distance is not considered a labor standard. The fact that a commute is outside the customary distance workers in an employee's labor market are willing to travel for the wage offered does not mean that the position is substantially less favorable to the employee than similar work in his labor market. Gross v. Schlotzsky's Deli, UI Dec. Hearing No. 04601937MW (LIRC Aug. 27, 2004).

(7)( Back ) Wis. Stat. § 108.04(11)(be)2.

(8)( Back ) Although there was no evidence in the record as to the employee's weekly benefit rate, the rate was calculated by dividing the original penalty amount, $920, by four ($920 ÷ 4 = $230). 

uploaded 2015/12/02