State of Wisconsin
Labor and Industry
Review Commission
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Unemployment
Insurance Decision[1] |
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Claimant |
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Dated and
Mailed: |
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Hearing
Nos.16606402MW 16606403MW |
February 23, 2017 |
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The commission affirms in part and reverses
in part the appeal tribunal decisions issued for the above listed hearing
numbers subject to the modifications
below. Accordingly, the claimant is
ineligible for benefits for weeks 5 through 24 of 2016. He is required to repay the sum of $7,030 to
the unemployment reserve fund. He is not
required to pay a penalty of $2,812. The
claimant's future benefits payable before July 2, 2022, shall NOT be reduced in
the amount of $14,800.
Procedural Posture
These cases are before the commission to consider the claimant's eligibility
for unemployment insurance benefits. An administrative law judge (ALJ) for the
Unemployment Insurance Division of the Department of Workforce Development held
a combined hearing and issued two decisions. Timely petitions for commission
review were filed. The commission has considered the claimant's petitions, and
it has reviewed the evidence submitted at the hearings. Based on its review,
the commission makes the following:
Findings of Fact and Conclusions of Law
1.The claimant has been employed in the food processing and agricultural
industry for over ten years as a seasonal worker.
2. The claimant has filed for unemployment insurance payments in the
off-seasons for at least three years.
The claimant opened a claim for benefits in week 5 of 2016 and filed
claims through week 24 of 2016.
3. The claimant was required to conduct four weekly work searches each
week in weeks 5 through 24 of 2016.
4. The department mailed the claimant a claim confirmation letter that
advised him of his weekly work search obligations. It also included a form called UCB-12, which
advised him specifically what constituted a valid work search and what did not.
5. The claimant does not read, write or understand much English. Spanish is the claimant's first
language. He completed the second grade
in school in Mexico many years ago.
6. He read and indicated he understood, the
instructions on the claim confirmation, the UCB-12, and the Spanish version of
the claimant handbook.
7. He filed handwritten weekly work search logs by fax each week, and
indicated that a friend, who had completed the fifth grade, helped him write
the logs because his handwriting is poor.
The friend testified at the hearing that he did not write out logs for
anyone but the claimant.
8. The claimant applied for a
number of jobs, including jobs in fields in which he had no prior experience,
hoping to obtain work.
9. The claimant applied at each of these employers in-person and was told
by each employer that they were not hiring.
He listed each of these contacts in his logs that he filed for weeks 5
through 24 of 2016 noting that the employers he contacted were not hiring.
10. The claimant filed weekly claims and answered “YES” to the question
“DID YOU CONTACT AT LEAST FOUR EMPLOYERS DURING THE WEEK TO TRY TO FIND WORK?”
11. Contacting an employer to learn that there are no openings is not a
valid work search action and thus, the claimant failed to perform a valid work
search in weeks 5 through 24 of 2016.
12. The claimant was paid benefits in the amount of $7,030 for which he was
not eligible and to which he was not entitled, within the meaning of Wis. Stat.
§ 108.03(1) and the entire amount must be repaid to the department because the
overpayment was not caused by any error of the department and was caused by the
actions of the claimant who did not perform a valid work search in each of
weeks 5 through 24 of 2016.
13. The claimant did not, while claiming benefits for weeks 5 through 24 of
2016, conceal from the department any material facts related to benefit
eligibility and his benefit eligibility for benefits payable by July 2, 2022,
are not reduced by $14,800.
Memorandum Opinion
The claimant asserts that he is entitled to an analysis of the
reasonableness of his work search under Wis. Stat. § 108.04(2) and Wis. Admin. Code § DWD 127.01.
The claimant argues that according to the administrative code the
reasonableness of a work search will partly depend on employment opportunities
in the claimant's labor market area. The
code indicates that a search that may be appropriate in an area with limited
opportunities may be totally unacceptable in an area with greater
opportunities. The claimant argues that
his opportunities to find work in Eagle Pass, Texas are very limited. The claimant and other workers would travel
to Wisconsin for seasonal employment and then return to Eagle Pass at roughly
the same time each year. Thus, the
claimant argues that the limited opportunities for obtaining work in the
claimant's labor market should be considered when determining what is a
reasonable search for work.
However, the administrative code specifies that applying for work with
employers who may reasonably be expected to have openings for suitable work and
making applications for suitable work are acceptable work search actions. Contacting employers to see if they are
hiring and being told they are not hiring is not one of the specifically
enumerated work search actions. Further,
if contacting employers and being told they are not hiring is considered a work
search action, a claimant could avoid accepting work by inquiring at various
employers about work until he or she found four that were not hiring. Thus, a claimant would be able to avoid a
search reasonably likely to result in an offer of employment. At any rate, looking for work and being told
there are no openings is not a work search action listed by the administrative
code, even if the footnote, and by extension, the claimant handbook's list of
invalid work search actions, are not considered.
Further, being told no work is available is not an action that is
“reasonably designed to secure work.”
The code does allow for some discretion in determining what is
appropriate in different sized labor markets.
However, the claimant is essentially asking the commission to determine,
based on the claimant's testimony that there are very few jobs in the area,
that the claimant need not perform a good-faith search for work. In Leticia
P. Arevalo, UI Dec. Hearing No. 16602926MW (LIRC
Aug. 17, 2016), the commission concluded that Ms. Arevalo
did not make a valid work search in weeks she submitted reports identifying
four prospective employers she contacted and learned were not hiring. No applications were submitted in connection
with her contacts.
The claimant argues that section Wis. Admin. Code § DWD 127.01(2)(j),
which states that a reasonable job search action may include other actions as
determined by the department, is effectively read out of the rule by the
handbook. The handbook, argues the
claimant, was not subject to rule promulgation and deprives claimants of the
opportunity to have an individualized analysis of their job search
actions. However, Wis. Stat § 108.04(2)
requires an individual to conduct a reasonable search for work in order to be
eligible for benefits in a given week,
and that search must include at least 4 actions that constitute a
reasonable search as defined by rule of the department. The handbook lists examples of valid and
invalid work searches and provides guidance to claimants. The commission is required to apply the law
as it is written. The statute requires
an individual perform a reasonable work search.
The commission cannot adopt an interpretation which would allow a
claimant to be eligible for benefits even if that individual does not make a
reasonable search for work.
Wisconsin Stat. § 108.04(11)(g)2 provides:
1.
In this subsection, “conceal” means to
intentionally mislead the department by withholding or hiding information or
making a false statement or misrepresentation.
2.
A claimant has a duty of care to provide an accurate and complete response to
each inquiry made by the department in connection with his or her receipt of
benefits. The department shall consider the following factors in determining
whether a claimant intended to mislead the department as described in subd. 1.:
a. Whether the claimant failed to read or
follow instructions or other communications of the department related to a
claim for benefits.
b. Whether the claimant
relied on the statements or representations of persons other than an employee
of the department who is authorized to provide advice regarding the claimant's
claim for benefits.
c. Whether the claimant has
a limitation or disability and, if so, whether the claimant provided evidence
to the department of that limitation or disability.
d. The claimant's unemployment insurance claims filing experience.
e.
Any instructions or previous determinations of concealment issued or provided
to the claimant.
f. Any other factor that
may provide evidence of the claimant's intent.
3. Nothing in this subsection requires the
department, when making a finding of concealment, to determine or prove that a
claimant had an intent or design to receive benefits to which the claimant
knows he or she was not entitled.
The commission concluded that the claimant did not intend to conceal
information regarding his work search from the department. The claimant reported that he went to four
employers each week and indicated on his work search forms that those employers
were not hiring. Thus, the claimant
accurately reported his work search actions to the department. That the department later determined that
those actions were not valid does not amount to intent on the part of the
employee to conceal information related to his claim from the department.
The commission notes that the claimant has little in the way of a formal
education and that at the hearing he struggled to express himself while
answering some of the questions. The
claimant asked his friend, who had only a fifth grade education, to help him
complete his work search forms. The
claimant credibly testified that while he did not have a great deal of
experience with cleaning work he thought he would be able to perform jobs of
this nature. The commission concludes
that the claimant in this case attempted to read the information provided by
the department and answered the questions asked to the best of his
ability.
The department witness testified that he examined the work search
reports of three claimants and the handwriting was “similar to the handwriting
of” an individual named Dora Lus Ramierez. Transcript at p. 29. The witness stated at page 33 of the
transcript that the claimant “was accurate in his reporting that they were not
hiring. We had contacted any of those
employers and confirmed that fact throughout those investigations.” In addition, the work searches filled out by
the other claimants were not made an exhibit at the hearing so the commission
was unable to examine those forms and compare them to the forms filled out by
the claimant's friend. The department
did not present sufficient credible evidence to establish that one individual
filled out all three work search forms, or that the claimant in this case did
not make the employment contacts that he reported on his form.
The commission obtained the demeanor impressions of the ALJ. He indicated that the claimant appeared by
telephone and was in the same room as his attorney. The ALJ speaks Spanish, but it was difficult
to assess the claimant's credibility.
The claimant gave short and concise answers to questions and initially
there was a fair amount of silence following most questions before he provided
his answers. The questioning progressed
into valid versus invalid work searches and he told the ALJ several times that
he did not understand the questions. He
also gave non-responsive answers. The
ALJ was not persuaded that the answers were truly the claimant's own. Further, the hearing was abruptly interrupted
during the claimant's attorney's questions because of a fire alarm where the
department witness was located. After
that point, it was the ALJ's impressions that the pauses in the claimant's
responses were not as long or as numerous as prior to the break.
The commission found the claimant to be a credible witness. The claimant testified that because of his
lack of education, he asked his friend to help him file his claims. The claimant presented the testimony of his
friend to corroborate his own testimony.
Further, the commission finds it likely, based on the way in which he
responded to some questions, that while he understood that he needed to make a
job search, he did not understand completely what constituted a valid work search.
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Attorney Erica Sweitzer-Beckman |
[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.