Wis.LIRC UC Decision: Honea, Vuttiphan - September 23, 1999 - AA 220 - Domestic or other personal circumstances - Work restrictions on Visa - Grace period under DWD 128.02; BR 335.01 - Overpayment waiver granted - 'department error'

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

VUTTIPHAN Z HONEA, Employe

MILWAUKEE BALLET CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604390MW

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe, a Canadian citizen, worked in the United States on a P-2 visa from August 31, 1998 through May 30, 1999. According to the terms of his visa, which was good through August 1, 1999, the employe was only permitted to work for the employer. The employe worked for the employer, a ballet company, for about nine months as a dancer. His last day of work was May 30, 1999 (week 23), which was the last performance of the season. He indicated at the hearing that he plans to renew his visa for the upcoming year, to start on September 23, 1999 and that, from July 10, 1999 through August 23, he intends to go to Africa in order to perform missionary work. The employe initiated a claim for benefits in week 20 of 1999, the week ending May 15.

The question presented is whether the employe was able to work and available for work as of week 23 of 1999.

Wisconsin Statute � 108.04(2)(a) provides that a worker who earns no wages in a given week must be able to work and available for work in order to be eligible for benefits. An employe is not considered to be able to work or available for work in any given week if the employe, without good cause, restricts his availability for work to less than fifty percent of the full-time opportunities for suitable work in the labor market or if the employe's physical condition or personal circumstances over which he has no control limits him to less than fifteen percent of the opportunities for suitable work in the labor market. Wis. Admin. Code � DWD 128.01(2).

The administrative code also provides, in relevant part:

DWD 128.02 Availability for work; temporary grace periods for claimants with uncontrollable restrictions. (1) The department shall consider a claimant to have satisfied the requirements of this chapter for certain designated grace periods enumerated under sub. (2) if:

(a) The claimant's physical condition or personal circumstances over which the claimant has no control limit the claimant to less than 15% of the opportunities for suitable work, as specified under s. DWD 128.01(2)(b);

(b) The claimant is available for work under the same conditions which applied to the claimant's most recent period of employment; and

(c) The claimant's most recent separation from work was due to a layoff.

(2) (a) If at least two-thirds of all the wages paid in the 26-week period immediately preceding the week in which the claimant initiates the benefit claim were earned under substantially the same condition as applied to his or her most recent employment, the department shall grant the claimant a grace period of 6 weeks beginning with the week after the week in which the claimant's layoff occurred.

(b) If at least one-third but less than two-thirds of all the wages paid in the 26-week period immediate preceding the week in which the claimant initiates the benefit claim were earned under substantially the same conditions as applied to his or her most recent employment, the department shall grant the claimant a grace period of 3 weeks beginning with the week after the week in which the claimant's layoff occurred.

Wis. Admin. Code � DWD 128.02.

The employe's uncontrollable restriction renders him only available for work with the employer, which clearly limits him to less than 15 percent of the opportunities for suitable work. In addition, the employe was laid off by the employer, and he would be able to work under the same conditions which applied in his job for the employer. (1 ) Given these circumstances, and because at least two-thirds of the wages paid to the employe during the 26-week period preceding his claim were earned under substantially the same conditions as applied to his most recent employment, he is entitled to a grace period of six weeks.

The employe was employed and earned wages in week 23 of 1999, the calendar week ending June 5, 1999. His grace period extends from weeks 24 through 29 of 1999, the six-week period commencing with the week after the lay-off occurred. However, because the employe's plans to leave for Africa on Saturday of week 28 render him unable to work in week 29 under the same conditions that applied in his most recent job, he does not satisfy the requirements for a grace period in that week.

The commission therefore finds that as of week 23 of 1999, the employe is available for work, within the meaning of Wis. Stat. � 108.04(2)(a) and Wis. Admin. Code � DWD 128; and that he is entitled to a grace period for weeks 24 through 28 of 1999, within the meaning of the law.

The commission further finds that the employe was paid benefits in week 29 of 1999 in the total amount of $297, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. � 108.03(1).

A secondary issue presented in this case is whether the overpayment of benefits to the employe was because of departmental error or was partially or wholly because of the employe's actions, and whether the department is required to waive recovery of any portion of the overpayment.

The statute provides that the department shall waive recovery of benefits that were erroneously paid if the overpayment was the result of a departmental error. Wis. Stat. � 108.22(8)(c). The statute defines "departmental error" as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. � 108.02(10e). In this case the department concedes that any overpayment in week 29 was due to department error, in that the appeal tribunal failed to consider the effect of the employe's trip to Africa upon his eligibility for benefits, and recommends that the resulting overpayment be waived.

The commission, therefore, finds that waiver of benefit recovery is required under Wis. Stat. � 108.22(8)(c), because the overpayment was the result of a department error and did not result from the fault of the employe, as provided in Wis. Stat. � 108.04(13)(f).

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employe is eligible for benefits in weeks 23 through 28 of 1999, if he is otherwise qualified. Benefits are suspended as of week 29 of 1999, and until the employe is again able to work and available for work. The employe is not required to repay the overpaid benefits.

Dated and mailed September 23, 1999
honeavu.urr : 164 : 5 AA 220 BR 335.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review the department argues that the grace period was put in the statute for an individual who is able to perform at least some work and that, where the claimant was laid off from the only work that is available for him, he is ineligible for benefits. The commission has considered this argument, but finds it unpersuasive. The administrative rule states only that, in order for the grace period to apply, the claimant must be available for less than 15% of suitable work. Wis. Admin. Code � DWD 128.02(a). If the department's interpretation were correct, the rule would provide that a claimant must be available for less than 15% but more than 0% of suitable work in order for the grace period to apply. The rule does not do so, and the commission sees no basis to interpret it in a manner which is contrary to its plain language.

The department also contends that the application of the grace period in this case would be inconsistent with the statutory requirement that a claimant be able to work and available for work. Again, the commission is unpersuaded by this argument. Clearly the grace period is meant to be an exception to the requirement that a claimant be able and available for work. Indeed, if the requirements for the grace period were the same as the general requirements set forth in the statute and in chapter 128, there would be no point in having a grace period at all. The commission is in agreement with the appeal tribunal that the employe meets the conditions set forth in the rule for application of the grace period and that he, therefore, must be considered to have satisfied the able and available requirements on a temporary basis. Accordingly, the appeal tribunal decision is affirmed.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. � 108.04(2)(a) "General Qualifying Requirements. (a) Except as provided in par. (b) and as otherwise expressly provided, a claimant is eligible for benefits as to any given week for which he or she earns no wages only if : 1. The individual is able to work and available for work and is seeking suitable work during that week; and 2. As of that week, the individual has registered for work." The administrative rule can not be broader than the statutory authority so the rule can not overrule the statute.

DWD 128.01 (2) "A claimant is not considered to be able to work or available for work in any given week if: (a) The claimant, without good cause, restricts his or her availability for work to less than 50% of the full-time opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area; (b) The claimant's physical condition or personal circumstances over which the claimant has no control limit the claimant to less than 15% of the opportunities for suitable work, including all such jobs whether vacant or filled, in the claimant's labor market area;"

There is a note dealing with this section which says "ILHR 128.01(2)(a) applies to a claimant whose restrictions on availability for work are within his or her power to change or alter. School attendance is generally a controllable restriction and, therefore, "without good cause: unless the person is enrolled in an approved program under � 108.04(16), Stats. The wage demand of a claimant is also considered a controllable restriction. A claimant obligated to care for minor children is expected to make arrangements which would permit the claimant to accept suitable work. Unwillingness or failure to make such arrangements are controllable restrictions and, normally, without good cause. ILHR 128.01(2)(b) applies to a claimant whose physical condition or uncontrollable personal circumstances limit the opportunity for suitable work. A claimant may be severely limited in the type of work which he or she can perform because of illness, disability, injury or age, but still be able to perform at least 15% of the suitable jobs in the claimant's labor market area." Note that ILHR was the previous code name for DWD so we are dealing with the same code.

I would argue that the employe in our case does not have an uncontrollable restriction because he is not restricted in his ability to do jobs by illness, disability, injury or age but merely by his choice of location of the job. Since the employe is dependent on a visa to perform in this country, he has a restriction that could be changed if his visa allowed him to do work that was not restricted to work only for the Milwaukee Ballet. While it may not be easy for the employe to change that restriction, it is not something that can not be done.

Even if we apply the law on uncontrollable restrictions, I believe that the employe can not take advantage of DWD 128.02(1) which provides for a temporary grace period for claimants with uncontrollable restrictions. The majority suggests that because 0% is less than 15% the employe is eligible under the grace period. I believe the employe must be able for work and available for some work under 108.04(2) 1. I have no doubt that the employe is able to work in the physical sense but he is not able to work in the legal sense because he is restricted to working for the Milwaukee Ballet. The employe is not available for some work because he is limited to the Milwaukee Ballet. The last part of 1., indicates that the employe must be seeking suitable work during the week. The employe can not be seeking suitable work because it would be a futile exercise. If we interpret 0% as less than 15%, I believe we have gone beyond the statutory authority of 108.04(2) because the employe must be able and available for some work.

Lastly, I do not believe that we can say that the employe is available for work under the same conditions which applied to the claimant's most recent period of employment. The employe is certainly able to physically do the work. The employe is not available to do ballet work except for the Milwaukee Ballet. DWD 128.02 envisioned giving employe's benefits because even though they had restrictions that were physical or personal, they could have continued to do the same kind of work for another employer. In this case, the employe could not have done the same work for another employer.

The department went into detail about the P-2 visa in their brief. There was little testimony at the hearing about the visa so I will not rely on the allegations that the employe was to leave the country when the tour or performance ended.

For the reasons I have mentioned, I would reverse and find that the employe was not entitled to benefits because he was not able and available to work under either the controllable or uncontrollable restrictions.

___________________________________
Pamela I. Anderson, Commissioner

cc: DIRECTOR GREGORY A FRIGO
BUREAU OF LEGAL AFFAIRS

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Footnotes:

(1)( Back ) Contrary to the assertions raised by the dissenting commissioner, nothing in the rule requires that the employe be able to perform this work for another employer. Where, as here, the employe is able to perform exactly the same job he performed prior to his lay-off, there is no basis to conclude that he is not available for work under the same conditions which applied to his most recent employment.