State of Wisconsin

Labor and Industry Review Commission

 

 

 

Gerardo Covarrubio Martinez

Unemployment Insurance Decision[1]

Employee

 

 

 

Springhetti's Landscaping

& Lawn Care Inc.

 

Employer

Dated and Mailed:

 

 

Hearing Nos.16400580AP, 16400581AP, and 16400583AP through 16400588AP[2]

 

June 28, 2017

 

 

The decisions of the administrative law judge are affirmed in part and reversed in part, and the findings of fact and conclusions of law are modified to conform to the findings of fact and conclusions of law set forth herein. Accordingly, the employee is eligible for full or partial benefits for the weeks at issue, if otherwise qualified. The employee is required to repay benefits totaling $441 to the Unemployment Trust Fund. The employee is not required to repay any federal additional compensation (FAC). There are no concealment penalties.

 

 

By the Commission:

/s/

 

Laurie R. McCallum, Chairperson

 

 

 

 

/s/

 

David B. Falstad, Commissioner

 

 

Procedural Posture

This matter is before the commission to consider the employee's eligibility for unemployment insurance benefits in 2010, 2011, 2012, 2013, and 2014. The Bureau of Benefits in the Unemployment Insurance Division of the Department of Workforce Development (department) issued nine initial determinations, finding that the employee concealed work and wages when filing claims for unemployment insurance benefits in those years. The employee requested a de novo hearing before an appeal tribunal.

 

An administrative law judge (ALJ) for the department held hearings on July 13, July 14, and October 11, 2016. The ALJ issued one appeal tribunal decision, reversing the department's initial determination and finding no concealment. The ALJ issued eight appeal tribunal decisions, affirming the department's initial determinations, amending the weeks of issue, and finding concealment. The employee was required to repay benefits and to pay concealment penalties to the department. The employee petitioned for commission review of the eight adverse appeal tribunal decisions.

 

The commission has considered the employee's petition, the positions of the parties, and the briefs submitted, and the commission has conducted an independent and thorough review of the evidence submitted at the hearings in this matter. Based on its review, the commission makes the following:

 

Findings of Fact and Conclusions of Law

1.      The employee, Gerardo Covarrubio Martinez, has worked as a seasonal laborer for the employer, Springhetti's Landscaping and Lawn Care, Inc., since 2006.

2.      The employee works as a landscaper's helper during the spring, summer, and fall. Beginning in 2010, he was sometimes called in to plow snow for the employer during the off season.

3.      The employee earned $12.50 per hour through week 13 of 2010, then $13.50 per hour through week 10 of 2012, and then $14.50 per hour through week 8 of 2014.

4.      The employee is originally from Mexico, where he attended school through the 6th grade. In 2004, when he was 17 years old, the employee moved to the United States. He attended an American high school for less than two years. He did not graduate.

5.      The employee did not speak English when he moved to the United States in 2004.

6.      The employee began filing for unemployment insurance benefits in 2010, when someone told him that he was able to file for benefits after being laid off from his seasonal job for the winter. The employee was not aware of the unemployment insurance program and had not filed for benefits prior to working for Springhetti's.

 

7.      The employee does not specifically recall who told him that he could apply for unemployment insurance benefits. The employee was not told how to file his claims or how to answer specific questions, but he was told to save the hours that he worked in the winter for payment in the spring.

 

8.      When the employee plowed snow for Springhetti's, he tracked his hours and submitted those hours to Springhetti's for payment after he returned to his landscaping work in the spring.

 

9.      The employee had a company credit card that he used in the winter if the employer's snowplowing trucks needed gas.

 

10.    The employee filed claims for unemployment insurance benefits for weeks 2, 3, 6 through 13, and 50 through 52 of 2010 and week 1 of 2011.[3]

11.    The employee filed claims for unemployment insurance benefits for weeks 2 through 11, 13, 14, 16, 17, 49, 52 and 53 of 2011.[4]

12.    The employee filed claims for unemployment insurance benefits for weeks 1 through 4 and 6 through 10 of 2012.[5]

13.    The employee filed claims for unemployment insurance benefits for weeks 50 through 52 of 2012 and weeks 1 and 3 through 15 of 2013.[6]

14.    The employee filed claims for unemployment insurance benefits for weeks 49 through 52 of 2013 and week 1 of 2014.[7]

15.    The employee filed claims for unemployment insurance benefits for weeks 2 through 8 of 2014.[8]

16.    The employee filed his claims in Spanish, usually by telephone.

17.    The employee uses a Spanish translator when dealing with issues relating to unemployment insurance benefits.

18.    The employee did not report the hours he worked plowing snow for the employer when he filed his weekly claim certifications prior to week 9 of 2014, because he had been told to save his hours and he did not know that he had to report them to the department even if he would not get paid for the hours until spring.

19.    In the winter, the employee did not report any hours he may have worked to Springhetti's, and he was never paid by Springhetti's during the winter.

 

20.    When asked as part of his weekly claims if he had worked in the week, the employee answered “No” even if he had performed some work plowing snow for Springhetti's, because, as instructed, he was saving his hours.

21.    The employee was not aware that the unemployment insurance law does not permit claimants to “save” hours.

22.    Department records show that a Handbook for Claimants was mailed to
the employee in January of 2010, 2011, and 2013. At least one of those handbooks was a Spanish version, which the employee received. The employee did not look through the booklets. None of them specifically addresses the issue of “saving” or “banking” hours.

23.    In February 2014, the department began investigating the employer for orchestrating an aiding and abetting scheme. The employee was one of several workers the department believed were, in collusion with the employer, “banking” hours while collecting unemployment insurance benefits and concealing work and wages in order to receive more benefits than those for which they were eligible.

24.    In February 2016, the department issued nine determinations finding that
the employee concealed work and wages when filing claims for 69 weeks in 2010 through 2014.

25.    The employee did not dispute that he sometimes plowed snow for Springhetti's. Although he could not recall any particular dates on which he plowed snow, the employee provided good faith estimates, based on charges to his company credit card and actual snowfall totals, of the amount of time he could have spent plowing snow for Springhetti's in 2010, 2011, 2012, 2013, and 2014.

26.    The employee's estimates of work performed and wages earned during the winter months are the best evidence of work and wages for the weeks at issue.

27.    The commission does not draw an inference from the circumstances that
the employee intentionally provided incorrect information to the department to obtain benefits for which he was not eligible and to which he was not entitled.

28.    The employee did not understand the unemployment insurance system well enough to form the intent to cheat it.

29.    The employee had little pecuniary reason to deliberately withhold work and wage information from the department, because he seldom worked enough hours in the winter to earn more than the $30 weekly offset included in the partial benefits formula.

30.    The employee did not intend to mislead or defraud the department.

31.    The employee worked and earned wages in a fraction of the weeks at issue and did not conceal, as that term is defined in Wis. Stat. § 108.04(11)(g), that work and those wages from the department when filing benefit claims for those weeks.

32.    The employee is entitled to benefits for the weeks at issue as set forth in the tables below. Benefits for weeks in which the employee worked and earned wages are calculated pursuant to Wis. Stat. § 108.05(3).[9]

 

For Hearing No. 16400580AP:

Week of

issue

Hrs:Min

worked

Wages earned ($12.50/hour)

Benefits

paid

Benefits

due

 Erroneous payment

2/10

0:00

$0

$328 + $25 FAC

$328

$0

3/10

0:00

$0

$328 + $25 FAC

$328

$0

6/10

0:00

$0

$328 + $25 FAC

$328

$0

7/10

0:00

$0

$328 + $25 FAC

$328

$0

8/10

2:00

$25.00

$328 + $25 FAC

$328

$0

9/10

0:00

$0

$328 + $25 FAC

$328

$0

10/10

0:00

$0

$328 + $25 FAC

$328

$0

11/10

0:00

$0

$328 + $25 FAC

$328

$0

12/10

2:00

$25.00

$328 + $25 FAC

$328

$0

13/10

0:00

$0

$328 + $25 FAC

$328

$0

50/10

0:00

$0

$328 + $25 FAC

$328

$0

51/10

0:00

$0

$328

$328

$0

52/10

0:00

$0

$328

$328

$0

1/11

0:00

$0

$328

$328

$0

Total

 

 

 

 

$0

 


For Hearing No. 16400581AP:

Week of

issue

Hrs:Min

worked

Wages earned ($13.50/hour)

Benefits

paid

Benefits

due

 Erroneous payment

2/11

0:00

$0

$341

$341

$0

3/11

0:00

$0

$341

$341

$0

4/11

0:00

$0

$341

$341

$0

5/11

0:00

$0

$341

$341

$0

6/11

0:00

$0

$341

$341

$0

7/11

0:00

$0

$341

$341

$0

8/11

0:00

$0

$341

$341

$0

9/11

0:00

$0

$341

$341

$0

10/11

0:00

$0

$341

$341

$0

11/11

0:00

$0

$341

$341

$0

13/11

0:00

$0

$341

$341

$0

14/11

0:00

$0

$341

$341

$0

16/11

2:00

$27.00

$341

$341

$0

17/11

6:00

$81.00

$341

$306

$35

49/11

2:00

$27.00

$341

$341

$0

50/11

0:00

$0

$341

$341

$0

51/11

0:00

$0

$341

$61

$280*

52/11

0:00

$0

$0

$0

$0

53/11

0:00

$0

$0

$0

$0

Total

 

 

 

 

$315

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

* As a result of the change in wage amounts reported to the department, the employee's benefits now exhaust in week 51 of 2011. This results in an erroneous payment of $280 for that week. Although weeks 50 and 51 of 2011 are not weeks at issue, they are included in the chart to reflect the payments made to the employee for those weeks and to explain the erroneous payment calculation.

 

 

For Hearing No. 16400582AP:

Week of

issue

Hrs:Min

worked

Wages earned ($13.50/hour)

Benefits

paid

Benefits

due

 Erroneous payment

1/12

0:00

$0.00

$363

$363

$0

2/12

0:00

$0.00

$363

$363

$0

3/12

0:00

$0.00

$363

$363

$0

4/12

0:00

$0.00

$363

$363

$0

6/12

0:00

$0.00

$363

$363

$0

7/12

0:00

$0.00

$363

$363

$0

8/12

0:00

$0.00

$363

$363

$0

9/12

0:00

$0.00

$363

$363

$0

Total

 

 

 

 

$0

 

 


For Hearing No. 16400584AP:

Week of

issue

Hrs:Min

worked

Wages earned ($14.50/hour)

Benefits

paid

Benefits

due

 Erroneous payment

50/12

0:00

$0.00

$363

$363

$0

51/12

0:00

$0.00

$363

$363

$0

52/12

0:00

$0.00

$363

$363

$0

1/13

0:00

$0.00

$363

$363

$0

2/13

0:00

$0.00

$363

$363

$0

3/13

0:00

$0.00

$363

$363

$0

5/13

0:00

$0.00

$363

$363

$0

6/13

0:00

$0.00

$363

$363

$0

7/13

0:00

$0.00

$363

$363

$0

8/13

7:00

$101.50

$363

$315

$48

9/13

2:00

$29.00

$363

$363

$0

10/13

0:00

$0.00

$363

$363

$0

11/13

2:00

$29.00

$363

$363

$0

12/13

0:00

$0.00

$363

$363

$0

13/13

0:00

$0.00

$363

$363

$0

14/13

2:00

$29.00

$363

$363

$0

15/13

4:00

$58.00

$363

$344

$19

Total

 

 

 

 

$67

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

For Hearing No. 16400585AP:

Week of

issue

Hrs:Min

worked

Wages earned ($14.50/hour)

Benefits

paid

Benefits

due

 Erroneous payment

49/13

0:00

$0.00

$363

$363

$0

50/13

3:00

$43.50

$363

$353

$10

51/13

3:00

$43.50

$363

$353

$10

52/13

1:00

$14.50

$363

$363

$0

1/14

0:00

$0.00

$363

$363

$0

Total

 

 

 

 

$20

 

 

        

 

 

 

 

 

 

 

 

 

For Hearing No. 16400587AP:

Week of

issue

Hrs:Min

worked

Wages earned ($14.50/hour)

Benefits

paid

Benefits

due

Erroneous payment

2/14

0:00

$0.00

$370

$370

$0

3/14

1:00

$14.50

$370

$370

$0

4/14

2:00

$29.00

$370

$370

$0

5/14

6:00

$87.00

$370

$331

$39

6/14

2:00

$29.00

$370

$370

$0

7/14

3:00

$43.50

$0

$360

*

8/14

3:00

$43.50

$0

$360

*

Total

 

 

 

 

$39

           

           

 

 

 

 

 

 

 

 

 

 

 * The department did not pay any benefits during its two-year investigation.

 

33.   The employee was erroneously paid benefits totaling $441, as set forth above.

 

34.    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 incorrect.

35.    The employee's failure to report work and wages on his weekly claim certifications for weeks 8 and 12 of 2010; weeks 16, 17, and 49 of 2011; 8, 9, 11, 14, 15, and 50 through 52 of 2013; and weeks 3 through 8 of 2014 was not fraudulent, but it nonetheless prevents waiver of recovery of the erroneously-paid benefits under Wis. Stat. § 108.22(8)(c).

36.    Because the employee did not conceal work or wages, within the meaning of Wis. Stat. § 108.04(11)(b), on his claim certifications for the weeks at issue, there is no overpayment of federal additional compensation (FAC), there are no overpayment concealment penalties, within the meaning of Wis. Stat.
§ 108.04(11)(bh), and there are no forfeitures or benefit amount reductions, within the meaning of Wis. Stat. § 108.04(11)(be) and (bm).[10]

Memorandum Opinion

The employee petitioned for commission review of eight adverse appeal tribunal decisions. The ALJ found that, to obtain unemployment insurance benefits to which he knew he was not entitled, the employee concealed his work and wages from the department in weeks 8 and 12 of 2010; weeks 16, 17, and 49 of 2011; 8, 9, 11, 14, 15, and 50 through 52 of 2013; and weeks 3 through 8 of 2014. In his petition, the employee contended that he did not intend to mislead or defraud the department. Instead, the employee argued that he did as he was told to do – save his hours in the winter until he returned to his seasonal landscaping job in the spring. The commission is satisfied, based on the overall record in this matter, that the employee did not conceal work performed and wages earned to obtain more benefits than those for which he was lawfully eligible.

 

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.”[11] The burden to establish that a claimant concealed information is on the department. The Wisconsin Supreme Court has required that concealment, as a form of fraud, be proven by clear, satisfactory, and convincing evidence.[12]

 

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. The commission does not draw an inference of fraudulent intent in every case in which a claimant provided incorrect information when filing a benefit claim.[13] Concealment is not found, for example, where a claimant makes an honest mistake, misinterprets information received from the department, or reasonably misunderstands his or her obligations and benefit rights under the unemployment insurance law.

 

Here, there is no direct evidence of concealment. The employee acknowledged that he did not report his snowplowing hours to the department “because he was saving them,” but he denied that he did it so he would receive more benefits than he otherwise would.

 

The indirect evidence in the record, when viewed as a whole, compels the conclusion that the employee did not report his snowplowing hours because he misunderstood his obligations as a claimant for unemployment insurance benefits. The employee speaks and reads Spanish and has had very little formal education. He began working for the employer, a small, family-owned business,[14] as a landscaper's helper in 2006, just two years after coming to the United States from Mexico at the age of 17. He did not know that the unemployment insurance program existed until someone told him in or about 2010 that he could call “the number” and “request for the unemployment since the job during the winter have finished.” The employee was told that he should not report the hours he worked in the winter until spring. Accordingly, the employee did not report his winter hours to the employer for payment until he returned to his regular position with the employer in the spring and did not report his winter hours to the department. The employee did not know enough to question the propriety of what he was told.

 

The employee's understanding of the unemployment insurance system was very simple. In the spring, summer, and fall, he worked his regular job as a seasonal landscaper's helper. After someone informed him of the existence of unemployment insurance, the employee called “the number” after being laid off for the winter and requested benefits. He worked in the winter if Springhetti's needed him. He “did whatever they wishes (sic). The snow would fall, they would call [him], and [he] would do the work.” The employee stopped requesting benefits each spring when he was back working at his regular job as a landscaper's helper.

 

The following exchanges between the attorney for the department and the employee are illustrative of the employee's level of understanding and state of mind at the time he filed his weekly benefit claims:

 

Q: Did you think if you said yes to the question, did you work, that you would not get your benefits that week?

A: Don't know. I don't remember.

Q: Did you answer no to the question, did you work, because you did not want the department to know you worked?

A: No. No, the reason why I answered no that I did not work is because I was saving my hours.

 

Q: When you were filing your weekly claims from 2010 through 2014, did you know that if you answered the question, did you work, yes that you would then be asked an additional question about how many hours you worked?

A: Didn't know.

Q: Is that because you always said no to the question, did you work?

A: Yes, it is.

Q: Even in weeks where you did work?

A: Yes, it is. Yes.

 

Q: Did you not report your hours you worked to the department because you weren't going to get paid for them until the spring?

A: Yes, it is. Yes.

Q: Did you think that the department would consider your wages if you reported them to determine whether you could get your benefits?

A: I didn't think on that.

 

Q: So, you understood that the hours you worked affected, uh, whether you could get unemployment insurance, is that right?

A: I did not understand.

 

The employee was not aware that he was doing anything wrong by saving the few hours he worked plowing snow in the winter until the spring. He did not look through the various versions of the Handbook for Claimants that had been sent to him, but he had no reason to believe that he needed to. The commission does not condone the employee's failure to read carefully through the Handbook for Claimants. However, at the time the booklets were sent to the employee, claimants were instructed to read the handbook “in order to understand and protect” their rights. The employee was receiving benefits in the winter, just as he had been told he could, and did not appreciate the need to closely examine the handbook's provisions. Moreover, even if he had read the handbook carefully, he would not have found a section addressing the issue of “saving” hours. It was not until early 2014, when the department began its investigation into the manner in which employees at Springhetti's reported their work hours, did the employee start “to know more about unemployment.”

 

Before reversing the appeal tribunal decisions, the commission consulted with the ALJ concerning the demeanor of the witnesses. The ALJ indicated that there were no particular demeanor impressions that she could recall which factored into her decisions. The commission credits the employee's testimony that he followed the instructions he received that he should “save” his winter hours and did not realize that he was doing anything wrong in the process. The employee made an innocent mistake due to inexperience and unfamiliarity with the unemployment insurance program and a lack of understanding.

 

The department argued that the employee admitted that, when he was asked each week if he worked, he understood the question that was asked of him and that the question is straightforward and not easily susceptible to misinterpretation. However, the employee in this case believed that, for him, the proper answer to the question was “No,” because, just as he was told to do, he was saving his hours and not getting paid until the spring. The employee was not aware that he was answering the question improperly.

 

The department further argued that the employee understood the reason the department asked him if he worked each week was because the answer he provided could affect his benefits. In support of its argument, the department cited the employee's testimony from the second day of the hearing.[15] But, the employee's answer to the question about whether the number of hours he worked could affect his unemployment benefits – yes – was consistent with his simple understanding of the unemployment insurance system: when he was not working his regular job in the winter, he could receive unemployment benefits; when he was working his regular job in the spring, summer, and fall, he could not.[16]

 

The department also argued that the employee in this case was similar to the claimant in McGee v. Crossmark, Inc., UI Dec. Hearing Nos. 14609275MW through 14609278MW (LIRC May 28, 2015). That is not so. Ms. McGee knew from past encounters with the department that she needed to report all hours worked and all wages earned, and she had been previously found to have concealed work and wages. Despite that knowledge and experience, Ms. McGee chose not to report any wages she earned from a part-time employer. The commission therefore found that Ms. McGee's failure to report work and wages a second time was not the result of an honest mistake, a misinterpretation of information received, or a good faith misunderstanding of her obligations. The knowledge and experience of the employee in this case are not in any way comparable to Ms. McGee's. The employee was a first-time filer, and he filed his claims the same way from 2010 through early 2014. During that time, he was never informed that he was filing his claims incorrectly. In addition, the commission found the employee's testimony credible. The commission did not find Ms. McGee's testimony credible. Finally, unlike Ms. McGee, the employee did not seek to blame his incorrect answers to the “Did you work?” question on his employer or anyone else. The employee did not discuss with anyone how to answer questions asked of him during the claims process but answered the “Did you work?” question in the negative because he was saving his hours, just as he had been told to do. The employee did not know or suspect that he was doing something wrong and was not trying to get more benefits than he was legally eligible to receive.

 

Another case cited by the department to support its argument is Atilano v. SBM Site Services, Inc., UI Dec. Hearing Nos. 16000036MD and 16000037MD (LIRC Mar. 11, 2016). This case is also distinguishable from the case at hand. Mr. Atilano, like the employee, was from Mexico and had limited formal education. However, unlike the employee, Mr. Atilano continued to file after he returned to full-time employment and reported that he did not work. Unlike the employee, Mr. Atilano was not following instructions to “save” his hours, was not working only a few hours per week, if at all, and was not having to wait to be paid for an indeterminate amount of time. Furthermore, Mr. Atilano could have easily learned of the state's waiting week had he read the Handbook for Claimants, whereas the handbooks sent to the employee do not clearly address the “saving” of hours. Lastly, an inference of concealment was drawn in Mr. Atilano's case, and he did not rebut the inference through affirmative proof of good faith. In the employee's case, based on the evidence in the record an inference of concealment was not drawn.

 

In his brief, the employee raised several areas of concern. First, the employee questioned the propriety of the department's decision to issue the initial determinations in this matter concerning work and wages without naming and providing notice to the employer. Although the department's failure to name the employer is unusual, the issue is moot. The hearing office provided the employer with notice of the proceedings. The fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner.[17] Yet, the commission “cannot condone a system which does not inform a party in interest of proceedings affecting that interest….”[18]

 

The second issue raised by the employee concerns the propriety of the ALJ's decision to grant a protective order preventing pages of the department's Disputed Claims Manual from being disclosed to the public. As set forth in the Wisconsin Administrative Code, an ALJ has the authority to issue a protective order to prohibit parties and their representatives from disclosing any evidence and exhibits listed as confidential in the protective order if the interests of justice so require.[19] The ALJ accepted the department's representation that it was in the interests of justice to issue a protective order because the evidence and exhibits at issue were confidential.

 

The commission reached its decision in this matter based on its determinations of credibility and intent. The confidentiality question does not need to be resolved in order to reach a decision, and the commission declines to take up the question at this time. However, the commission notes that there are federal regulations that address the confidentiality and disclosure of unemployment insurance information.[20] Those regulations provide that “information about State UC law (and applicable Federal law) provisions, rules, regulations, and interpretations thereof, including statements about general policy and interpretations of general applicability” is public domain information[21] and not subject to confidentiality.[22] The federal confidentiality and disclosure requirements apply to states and state agencies.[23]

 

The third issue raised by the employee concerns the quality of the translation services provided by the hearing office. The employee argued that two in-person translators were needed in this case given the length of the hearing, the number of documents involved, and the complexity of the issues. The hearing office declined to provide in-person translators and relied on outsourced language line services. Over the course of the three-day hearing, several different individuals provided translation services.

 

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, and national origin under any program or activity receiving federal financial assistance. Relevant case law has interpreted “national origin” to include ensuring that individuals with limited English proficiency (LEP) have meaningful access to programs and activities.[24] The federal government allows state unemployment insurance agencies to provide oral interpretation either in-person or via telephone interpretation service.[25] Only the use of free, web-based translation services (machine translation software) is not permitted, because it is not sufficient to ensure that the translation is appropriate and conveys the same meaning as the English version.[26] State unemployment insurance agencies are encouraged to “incorporate, into LEP plans, policies and procedures, methods for ensuring the quality of translations and interpretations. This may include, but is not limited to, using competent bilingual staff to ensure the accuracy of in-house or vendor-provided translations and interpretations.”[27] There is, however, no requirement that state agencies do so.

 

While in-person translations and interpretations are used in formal courts of law and may be preferred by parties, many of the rules that apply to courts of law are inapplicable to administrative hearings. Unemployment insurance appeal hearings are intended to be simple, speedy, and inexpensive.[28]

 

Finally, the employee objected to the appeal tribunal's ruling that evidence concerning the employee's health after the first two days of the hearing was irrelevant to the concealment allegations dating from 2010 through 2014. The commission agrees with the appeal tribunal's ruling on this point. While the length and significance of the hearing were undoubtedly stressful for the employee, the focus of the hearing was his intent and knowledge of the program and his obligations as a claimant at the time he filed the weekly claims at issue.

 

 

cc:

Attorney Victor Forberger

Attorney Kristin Shimabuku

Gill & Gill, SC

 

 



[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] The employer was not a named party to Hearing Nos. 16400583AP, 16400586AP, and 16400588AP. The appeal tribunal decision in Hearing No. 16400582AP was not adverse to the employee and is not before the commission.

[3] Subject of Hearing No. 16400580AP.

[4] Subject of Hearing No. 16400581AP.

[5] Subject of Hearing No. 16400582AP.

[6] Subject of Hearing No. 16400584AP.

[7] Subject of Hearing No. 16400585AP.

[8] Subject of Hearing No. 16400587AP.

[9] 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.

[10] The statutory penalties for concealment found in Wis. Stat. § 108.04(11)(be), (bh) and (bm) were not the same for all weeks at issue. Because it has been decided that the employee did not conceal work and wages while filing claims for unemployment insurance benefits, it is not necessary to outline in detail the precise nature and calculation of the penalties.

[11] Wis. Stat. § 108.04(11)(g)(2013-14). Effective April 3, 2016, “conceal” means to intentionally mislead the department by withholding or hiding information or making a false statement or representation. See 2015 Wis. Act 334.

[12] Wangen v. Ford Motor Co., 97 Wis. 2d 260, 299, 294 N.W.2d 437 (1980) (supreme court requires a higher burden of proof, i.e., to a reasonable certainty by evidence that is clear, satisfactory and convincing, in the class of cases involving fraud); Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 98, 98 N.W.2d 403 (1959) (“fraud must be proven by clear and satisfactory evidence, which requires a higher degree of proof than in ordinary civil cases”).

[13] Wallenkamp v. Arby's Restaurants, UI Dec. Hearing Nos. 13607281MW and 13607282MW (LIRC May 15, 2014); aff'd, Wis. Dep't of Workforce Dev. v. Wis. Labor and Indus. Review Comm'n, Wallenkamp, and Arby's Restaurants, No. 2015AP716, unpublished slip op (WI App Feb. 2, 2016).

[14] See Gussert v. Springhetti's Landscaping & Lawn Care, Inc., UI Dec. Hearing Nos. 16400598AP through 16400609AP (LIRC Jan. 27, 2017).

[15] T2. 129:22-130:1 (Q: Did you understand that the department was asking the question, did you work, because the answer to that question could affect your unemployment benefits? A: Yes.).

[16] T2. 120:16-24 (Q: Why did you stop filing for unemployment benefits in the first week in the spring? A: Because I started to work my regular hours in the spring.). See, also, T2. 122:8-12 (Q: So you … stopped filing in the spring because you started to work regular hours …? A: Yes, yes. Yes, that's the way that it is. What happen is I started to work daily and 40 hours.).

[17] Rhonda R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530 N.W.2d 34 (Ct. App. 1995) (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

[18] Griesbach v. Seek Career/Staffing Inc., UI Dec. Hearing No. 10402551AP (LIRC Nov. 30, 2010), citing Cornwell Personnel Associates, Ltd. v. DILHR, 92 Wis. 2d 53, 62, 284 N.W.2d 706 (Ct. App. 1979).

[19] Wis. Admin. Code § DWD 140.09(2).

[20] 20 CFR § 603 et seq.

[21] 20 CFR 603.2(c).

[22] 20 CFR 603.5(a).

[23] 20 CFR § 603.1.

[24] U.S. Dep't of Labor, Employment and Training Admin., Unemployment Insurance Program Letter No. 02-16 (Oct. 1, 2015), p. 7.

[25] Id., p. 8.

[26] Id., p. 9.

[27] Id., p. 10.

[28] U.S. Dep't of Labor, Employment and Training Admin., Unemployment Insurance Program Letter No. 26-90 (Apr. 26, 1990).