STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

Maureen A. Waoh-Tobin, Employee

Banana Republic, Employer

UNEMPLOYMENT INSURANCE DECISION[1]
Hearing No. 16602900MW


The commission affirms the appeal tribunal decision but makes its own findings of fact and conclusions of law as set forth herein. Accordingly, the employee is eligible for a full weekly benefit payment for week 8 of 2015 and for partial weekly benefit payments for weeks 31 and 32 of 2015. The employee is not eligible for a benefit payment for weeks 23 and 34 of 2015. The employee is required to repay the sum of $954.00 to the Unemployment Reserve Fund.

Dated and mailed October 18, 2016

BR 330: CP380

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the employee’s eligibility for unemployment insurance benefits for weeks 8, 23, 31, 32, and 34 of 2015. An administrative law judge (ALJ) for the Unemployment Insurance Division of the Department of Workforce Development held a hearing and issued a decision. A timely petition for commission review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing. Based on its review, the commission makes the following:

Findings of Fact and Conclusions of Law

1.The employee has filed for unemployment insurance benefits on and off since 2011. She initiated a new claim on February 9, 2015, for benefits beginning in week 6 of 2015. Her weekly benefit rate was calculated to be $364.00.

2.      In week 8 of 2015, the week ending February 21, the employee worked as a retail clerk for the Banana Republic for approximately 2 hours and 23 minutes and earned wages of $17.87.

3.      In week 23 of 2015, the week ending June 6, the employee worked as a substitute teacher for the Milwaukee Public Schools for 33 hours and 50 minutes and earned wages of $669.53.

4.      In week 31 of 2015, the week ending August 1, the employee worked as a substitute teacher for the Milwaukee Public Schools for 16 hours and earned wages of $316.00.

5.      In week 32 of 2015, the week ending August 8, the employee worked as a substitute teacher for the Milwaukee Public Schools for 16 hours and earned wages of $316.00. The employee also attended an orientation through Parallel Employment Group LLC for 4 hours for which she was paid $50.00.

6.      In week 34 of 2015, the week ending August 22, the employee worked as a case manager for the Center for Veterans Issues, Ltd. for 40 hours and earned wages of $769.20.

7.     When the employee filed her claim certifications for weeks 8, 23, 31, 32, and 34 of 2015, she did not report that she had worked and earned wages in those weeks. She was paid full benefits of $364.00 for each of those weeks.

8.     The employee did not dispute the work and wage information provided by her employers.

9.     The employee filed for benefits for the weeks in which she did not receive a paycheck. She filed her claims online.

10.   The employee believed that she read the department’s instructions for filing claims incorrectly,[2] because she understood that she was required to report her work and wages when she was paid.

11.   The employee did not intentionally withhold work and wage information from the department for weeks 8, 23, 31, 32, and 34 of 2015. She mistakenly believed that she was eligible for benefits for any week in which she did not receive a paycheck.

12.   In weeks 8, 23, 31, 32, and 34 of 2015, the employee worked and earned wages, but she 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).

13.  The employee was entitled to partial benefits, pursuant to Wis. Stat. § 108.05(3)(a),[3] for two weeks as set forth in the table below:

 

Week of

issue

Hrs:Min

worked*

Wages

earned*

Benefits

paid

Benefits

due

Erroneous payment

8/15

2:23

$17.87

$364

$364

$0

23/15

32 plus

$669.53

$364

$0

$364

31/15

16:00

$316.00

$364

$172

$192

32/15

20:00

$366.00

$172

$138

$34

34/15

32 plus

$769.20

$364

$0

$364

Total

 

 

 

 

$954

* Pursuant to Wis. Stat. § 108.05(3)(c), a claimant is ineligible to receive any benefits for a week in which the claimant performs 32 or more hours of work. Pursuant to Wis. Stat. § 108.05(3)(dm), a claimant is ineligible to receive any benefits for a week in which the claimant earns $500 or more from one or multiple employers.

14.The employee was erroneously paid benefits totaling $954.00, as set forth above.

15.   The erroneously-paid benefits are considered an overpayment (a debt the employee must repay), because the benefits were not paid as a result of departmental error, within the meaning of Wis. Stat. § 108.02(10e). The department paid benefits based on the information provided by the employee, which was inaccurate.

16.  While the employee’s failure to report work and wages on her weekly claim certifications for weeks 8, 23, 31, 32, and 34 of 2015, was not fraudulent, it nonetheless prevents waiver of recovery of the overpayment, under Wis. Stat.
§ 108.22(8)(c).

Memorandum Opinion

The employee petitioned for commission review of the appeal tribunal decision. The employee explained that the way she understood how to file for unemployment benefits was that she had to file a claim in the weeks in which she did not get paid and then in the week she received a paycheck she had to report the earnings. She had asked for a person to explain the issues to her because she did not understand the answer she had received from the department, but the department did not have “any person to assist [her] with the Language barrier.”

The department did not find that the employee “concealed,” as that term is defined in Wis. Stat. § 108.04(11), work and wages, because “she did not intentionally report work and wages inaccurately to receive benefits that were not due. Additionally, claimant was reporting wages when paid for multiple weeks not when earned.” It is clear from the recording of the hearing that English is not the employee’s first language. It is also clear that the employee is confused as to how the unemployment insurance program works and how she is to answer the questions posed to her by the department’s continued claims system.

By way of clarification, the law requires individuals who file for unemployment insurance benefits for a given week to report on their claim for that week the number of hours they worked in that week and the amount of gross wages they earned in that week, even if they will not be paid for that work until a later point in time. While it seems logical to some claimants, such as the employee, to report income/wages when received, a claimant for unemployment benefits must report wages in the week they are earned, not in the week they are paid.

 




Footnotes:

[1] 

Appeal Rights: See the blue enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint: the Labor and Industry Review Commission, all other parties in the caption of this decision or order (the boxed section above), and the Department of Workforce Development.

 

Appeal rights and answers to frequently asked questions about appealing an unemployment insurance decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] Although the employee spoke with an accent, the ALJ never asked if her first language was something other than English. After the hearing was closed, but before the recording of the hearing ended, the employee explained to the ALJ that she did not know if she misunderstood reading the department’s instructions because English is her second language.

[3] The statute provides that, if an eligible employee earns wages in a given week, the first $30 of the wages shall be disregarded and the employee’s applicable weekly benefit payment shall be reduced by 67 percent of the remaining amount, except that no such employee is eligible for benefits if the employee’s benefit payment would be less than $5 for any week.


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