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

RACHEL A SCHMIDT, Employe

BRAEGER FORD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601359MW

On January 28, 2000, the Department of Workforce Development issued an initial determination which held that the employe was not available for work, within the meaning of Wis. Admin. Code § DWD 128.01 (2)(a). The employe filed a timely request for hearing on the adverse determination, and hearing was held on March 7, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On March 10, 2000, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The Department of Workforce Development filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for about one and one-half years as a title clerk for the employer, an automobile dealership. Her last day of work was January 7, 2000 (week 2). In week 3 of 2000, the calendar week ending January 15, the employe initiated a claim for unemployment insurance.

The issue in the case is whether the employe was able to work and available for work in her labor market, beginning in week 4 of 2000, within the meaning of Wis. Stat. § 108.04(2)(a). The commission concludes that she was not, and so reverses the appeal tribunal decision. The commission also concludes that the appeal tribunal decision is departmental error, within the meaning of Wis. Stat. § 108.02(10e)(a).

The employe does not have a high school diploma. As a result, she is attending school through MATC to obtain her GED. She attends school from 10 a.m. to 2 p.m., Monday through Thursday. According to her school, she is attending on a full-time basis. She is making satisfactory progress towards obtaining her GED. She has the ability to successfully complete her coursework. MATC is a school set up under Wis. Stat. § 38.02.

Wisconsin statute § 108.04(2) requires that a claimant be "available for work" in her labor market in order to receive unemployment insurance. Wisconsin statute § 108.04(16) waives this availability requirement for claimants in approved training:

(16) APPROVED TRAINING. (a) Benefits shall not be reduced under sub. (1)(a), or denied under sub. (2) or (8) or s. 108.141(3g) to any otherwise eligible individual for any week because the individual is enrolled in a full-time course of vocational training or basic education which is a prerequisite to such training, provided it is determined that:

1. The individual possesses aptitudes or skills which can be usefully supplemented by training; and

2. The course is expected to increase the individual's opportunities to obtain employment, does not grant substantial credit leading to a bachelor's or higher degree, and is given by a school established under s. 38.02 or other training institution approved by the department; and

3. The individual can reasonably be expected to complete the training course successfully, and to find and accept work; and

4. The individual attended the training course full time during the given training week or had good cause for failing to do so, and is making satisfactory progress in the course. The department may require the training institution to file a certification showing the individual's attendance and progress.

A general requirement for benefit eligibility is that an employe be generally available for work. See Wis. Stat. § 108.04 (2)(a). The department has quantified the requirement for availability for work in DWD 128.01 (2) of the Wisconsin Administrative Code. Pursuant to that section, a claimant is not considered to be available for work in any given week if the claimant, without good cause, restricts his or her availability for work to less than 50 percent of the full- time opportunities for suitable work in the claimant's labor market area. The phrase "good cause" refers to restrictions on availability for work which are within the claimant's 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 training program under section 108.04 (16) of the statutes. In the present case, of the kind of the work suitable to the employe, approximately 70 percent is performed on the first shift. In other words, the employe is unavailable for approximately 70 percent of suitable work to her, because of her school attendance. She therefore does not meet the 50 percent availability for work requirement of Wis. Admin. Code § DWD 128.01 (2)(a). The dispositive issue is whether her school attendance is approved training, within the meaning of Wis. Stat. § 108.04 (16).

The administrative law judge, in finding that the employe was in approved training, reasoned that the employe would be better able to secure employment once she received her GED. The commission continues to believe that this is too loose a reading of the requirement that the basic education be a prerequisite to the vocational training. The record does not indicate that the employe's pursuit of her GED is a necessary step towards further vocational education. Instead, the record indicates only that the employe was pursuing her GED in the hopes of gaining better employment. That goal is exemplary, but it does not constitute a prerequisite to vocational education.

Judge Curry, in a 1974 Dane County Circuit Court decision, illustrated in an example the connection which the commission believes is lacking in the case now before it. See Ramsdell v. DILHR, Case No. 141-427 (Dane Co. 9-30-74). Judge Curry there indicated as potentially within the contemplation of Wis. Stat. § 108.04 (16)(a) an English composition class taken as basic education prerequisite to completing an intensive, full-time course entitled, for example, "Blue Print Reading for Machine Operators" and taken by one laid off due to a reduction in force at his or her manufacturer/employer who nevertheless has openings for machine operators capable of doing set-up work. As indicated above, however, in the case now before the commission there is no indication that the employe's pursuit of her GED is a prerequisite to further vocational training, as in the above-cited example. For these reasons, the commission finds that the employe's school attendance is not approved training within the meaning of Wis. Stat. § 108.04 (16)(a).

The commission therefore finds that, beginning with week 4 of 2000, the employe was not available for work, within the meaning of Wis. Stat. § 108.04 (2)(a)1 and Wis. Admin. Code § DWD 128.01 (2)(a). The commission also finds that the employe was paid unemployment insurance totaling $2700, for weeks 4 through 18 of 2000, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1). The commission finds, finally, that waiver of benefit recovery is required under Wis. Stat. § 108.22 (8)(c). The overpayment was the result of departmental error, and did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f). Specifically, it was error for the administrative law judge to conclude that the employe's GED schooling was a prerequisite to vocational training, within the meaning of Wis. Stat. § 108.04 (16). There was no evidence in the record to indicate that the employe's GED work was such a requisite. Absent such evidence, the commission and department's long-standing position has been that such education, in and of itself, is not sufficient to be considered approved training. See Morales v. Beckman Produce, UI Dec. Hearing No. 91-601194 MW (LIRC Nov. 29, 1991); and Unemployment Compensation Manual, Vol. 3, Part VII, ch. 13, p. 7.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employe is ineligible for unemployment insurance beginning in week 4 of 2000, and until she again is available for work, within the meaning of Wis. Stat. § 108.04 (2) and Wis. Admin. Code § DWD 128.01 (2). Recovery of the otherwise-due overpayment is waived, because of departmental error, as outlined above.

Dated and mailed May 12, 2000
schmira.urr : 105 : 3  AA 205  BR 335.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge, before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission's reversal is because, as a matter of law, general GED schooling is not approved training within the meaning of Wis. Stat. § 108.04 (16).

The dissent argues that there can be a debate about whether GED work must be tied to vocational training to be a prerequisite to the training. This is true; the debate occurred in the Ramsdell and Morales cases cited above, however. Any debate about the necessary tie-in of GED work to vocational training thus must take into account both commission and circuit court precedent, as well as the department's policy as ennunciated in it's Unemployment Compensation Manual. The dissent fails to mention all of this.

The dissent also asserts that most vocational training requires a GED prior to that training even if the course is not related to the area of the training. First, there is no evidence in the record support this assertion. Second, the employe never indicated any intent to enroll in vocational training. Her only goal, as indicated above, was to obtain her GED in order to gain better employment. Given these factors, the commission believes it is impossible to maintain that the employe's GED schooling is either vocational training or basic education prerequisit to such training, within the meaning of Wis. Stat. § 108.04(16).

PAMELA I. ANDERSON, COMMISSIONER (dissenting and concurring):

While I agree with the majority that under the facts in this case that the employe is not eligible for approved training and thus not exempt from the requirement that she be able and available for work, I disagree that we should find a department error. I agree with the administrative law judge that a person who has a GED is more likely to secure better employment than a person without a GED. The employe in this case did not show that her work toward her GED was in basic education that was a prerequisite to a full-time course of vocational training.

I believe that there can be a debate about whether the GED work must be tied to vocational training to be a prerequisite to the training. Most vocational training requires a GED prior to that training even if the course is not related to the area of the training. The department's petition was based on the fact that high school attendance is not regarded as good cause for restricting one's availability for work. The employe in this case is not a high school student and would not be required by state law to be in school. The employe has been in the work force. This is an unusual case and I do not believe that the result so obvious that because the commission has a different opinion than the administrative law judge that it reaches the level of an error of law.

For these reasons, I dissent on the issue of department error.

___________________________________
Pamela I. Anderson, Commissioner

cc: DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS

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