STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MIRIAM A FEY, Employe

MADISON AREA TECHNICAL COLLEGE DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99000426MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked as a substitute teacher for the employer, a technical school. The employe filed a claim for unemployment benefits in week 2 of 1998, the calendar week ending January 3. A required report, UCB-23 was mailed to the employer. The UCB-23, which primarily addressed the question of wages and separation, contained the directive to "RETURN THIS FORM ONLY IF INFORMATION IS MISSING OR INCORRECT OR YOU WISH TO RAISE AN ELIGIBILITY ISSUE." There was no information on the form with which the employer disagreed so it did not return the form.

The issue which must be decided is whether the employe was improperly paid benefits as a result of the employer's failure to question the employe's benefit eligibility.

Wis. Stat. § provides, in part, that:

". . . If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under sec. 108.22(8), the recovery does not affect the benefits charged made under this paragraph."

Wis. Stat. § 108.04(13)(f) provides, in part, that:

"If benefits are erroneously paid because the employer fails to file a report required by this chapter, fails to provide correct and complete information on the report, fails to object to the benefits claim under s. 108.09(1) or aids and abets the claimant in an act of concealment as provided in sub. (11) the employer is at fault."

The initial determination found that the employe had worked for an educational institution in an instructional, research or principal administrative capacity during an academic year, and that she has a contract or reasonable assurance that in the next academic year or term she would again perform such services for an educational institution. The employe neither appealed nor appeared at the hearing to present evidence to refute that determination.

In this case, the employer's position was that its administrator clerk merely reviews the form to make certain the information is correct. She did not see anything on the form that was inaccurate so she did nothing further. The administrator clerk was familiar with the forms, which she receives on a routine basis.

It is true that the form UCB-23 does not specifically list "school year employe" as a potential eligibility issue, however, it does list some of the more common eligibility issues, including whether the employe quit, was discharged, refused an offer or work or was not able to work or available for work. There is also a space for "Other" issues, that the employer might list specifically. It was not clear from the record whether the employer had received a copy of the department's handbook for employers, however, the employer is a technical college and knew or should have known that it was the employer's responsibility to raise any "school year employe" eligibility issues. The employer's failure to raise this issue was the result of its own negligence.

The commission therefore finds the employer failed to question the employe's benefit eligibility on a department form, within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, in weeks 21 through 34 of 1998 the employe is ineligible for benefits based on any wages paid for work performed for the employer. Benefits paid to the employe in error, through , as a result of the employer's failure will remain charged to the employer's account, pursuant to Wis. Stat. § 108.04(13)(c). The employer's reserve account will not be credited with the amount of overpaid benefits, even if repayment is received by the department, pursuant to Wis. Stat. § 108.04(13)(e).

Dated and mailed August 11, 1999
feymi.urr : 145 : 7  BR 319.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission does not reverse the ALJ because it reached a different credibility impression than that reached by the ALJ. Rather, the commission reverses the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.


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