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


CATHERINE M WEINGARTEN, Claimant

THE FRIENDLY VILLAGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00200129EC


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 claimant worked about 21 years as a registered nurse for a long term nursing facility. Her last day of work was March 16, 2000 (week 12). She initiated a claim for unemployment benefits on June 7, 2000 (week 24).

Due to the nature of the separation of employment with the nursing facility, the claimant assumed that she was not eligible for unemployment benefits. After she began working as a home health care worker for another business, the claimant reconsidered her conclusion of ineligibility. She read a poster regarding unemployment benefits that was displayed in the break room of the subsequent employer. Thereafter, she initiated a claim for unemployment benefits.

At the workplace, the employer posted a notice regarding unemployment insurance claiming procedures on a bulletin board. The bulletin board was near a time clock downstairs from the floor on which the claimant worked. The claimant utilized a time clock at the nurses' station and took her breaks in an office on the floor on which she worked. The employer did not have a poster regarding unemployment benefits displayed in or near the nurses' station. The claimant did not take breaks in the break rooms and did not use the time clock near the bulletin board. The time clock is down the hall and two corners away from the break-room.

The statute and administrative code provide that a claimant is eligible to begin a benefit claim only in a week in which she has made an initial claim for benefits. The requirement may be waived if exceptional circumstances exist. Wisconsin Administrative Code § DWD 129.01 (4) provides that an exceptional circumstance exists if the employer fails to post information regarding claiming procedures and the employe was not aware of the duty to notify the department of her intent to initiate a claim.

The employer did not have displayed notice as to claiming unemployment insurance benefits posted at the time clock that was used by the claimant. In addition, the claimant worked on the second floor and took her breaks in the social services office. Finally, even if the claimant took her breaks in the non- smoking break room she would not be in the vicinity of the time clock. (1)

The commission has previously held that it is insufficient to post notice at only one of a number of time clocks. In Sica v. Wilde Pontiac Cadillac, Inc., UI Dec. Hearing No. 94603478WK (LIRC Jul. 22, 1994) the commission stated:

The employer also did not have an unemployment-notice poster displayed in areas of the dealership where certain of the employer's workers would have occasion to see the notice-poster. The employer had only one notice-poster displayed at the work site, next to the time clock in the service area of the dealership. The employe, however, as the finance manager for the employer, had no reason ever to be in that area of the work site and, indeed, had never been to that area of the dealership until after her employment had ended.

Wis. Admin. Code § ILHR 120.01 requires employers to post unemployment insurance notice-posters `at suitable points (on bulletin boards, near time clocks, etc., where all employes will readily see them).' The employer in this case did not meet this requirement since, by placing the notice only in the service area, the employes of the employer in job positions such as the employe would not see the notice. Wis. Admin. Code § ILHR 129.01 (3) states that the department shall waive the timely in-person reporting requirement if an exceptional circumstance exists. One enumerated exceptional circumstance is the failure of the claimant's employer to post or maintain any notice relating to claiming unemployment benefits. These administrative code provisions, taken together, require waiver of the in-person reporting requirement not only where an employer has posted no notices but also where the employer's posting does not meet the requirement of Wis. Admin. Code § 120.01.

While the statute does not require employers to display unemployment posters at every possible location in order to insure that every worker is aware of the unemployment reporting requirements, it is not reasonable for an employer to display a UI poster at only one time clock if all workers do not use that time clock or do not frequent the area in which the poster is displayed. The employer is not being required to post a notice at every possible location. The employer is expected to post notices at locations that are frequented by workers to insure that workers are aware of or have the opportunity to apprise themselves of the filing requirements. A notice posted by a time clock that the employer's witness acknowledges the claimant did not use and did not pass during her work duties, is not reasonably calculated to apprise this claimant, or other similarly situated workers on the second floor, of the UI requirements. The claimant has no history of prior unemployment insurance claims to alert her of the reporting requirements.

The commission therefore finds that in weeks 13 through 23 of 2000, the claimant failed to initiate a benefit claim within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129, but the reason for the failure constituted an exceptional circumstance so as to permit a waiver of the notification requirement, within the meaning of that section and chapter.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the claimant is eligible for benefits in weeks 13 through 23 of 2000, if she is otherwise qualified.

Dated and mailed August 31, 2000
weingca.urr : 132 : 6 : CP 360

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission does not disagree with any credibility determination made by the administrative law judge but reaches a different conclusion when applying the law to the facts.

 


Pamela I. Anderson, Commissioner (Dissenting):

I am unable to agree with result reached by the majority herein and I dissent. The employe testified "I did nothing about filing a claim for benefits after my last day in March. I was always under the impression if you resigned from your job you were not entitled to UI benefits. I started that (sic) job on 6/1, and contacted the UI office and did the claim thing because I read the UI poster which made me think I might be entitled." The majority finds that the employe did not timely file for benefits because the employer did not have a poster up by the time clock she used. There is nothing on the poster which indicates that an employe is or is not likely to be eligible if the employe resigns or quits her job. While a poster may have reminded the employe file for benefits, it was not the reason she failed to give timely notice.

DWD 120.01 says "Each covered employer shall keep his or her employes informed as to ch. 108, Stats., by posting appropriate notice-posters supplied to the employer by the employment security division. Such notices shall be permanently posted by each employer at suitable points (on bulletin boards, near time clocks, etc.) where all employes will readily see them) in each of the employer's work- places and establishments in Wisconsin." Other appropriate places to post the sign are breakrooms or the lunchroom.

The employe in this case testified that she did not use either the smoking or non- smoking breakroom and chose to take her break in the social services office. The employer witness had no prior knowledge that the employe took her break in the social services office. The employment coordinator testified "It is my understanding that all employes are expected to take their break in the employe break room unless they leave the building, and there is a smoking and a non- smoking." While this employer had a second time clock, there is no requirement that the employer post the poster near the time clock as opposed to an official bulletin board or lunch or breakroom. The employe could have readily seen the poster if she went down that hallway.

I believe the employer posting was sufficient under the administrative rules and I believe that the reason the employe was late in her filing for benefits was unrelated to the poster.

Thus, I would affirm the administrative law judge's decision that the employe did not meet the exceptional circumstance exception.


__________________________________________
Pamela I. Anderson, Commissioner


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Footnotes:

(1)( Back ) The dissent states that the employe would have seen the poster if she "went down that hallway." That the poster was in a hallway is true, but not a hallway used by all workers. The fact is that the employe's route to the break-rooms would not include passing the time clock. Whether the employe used the break-rooms is irrelevant as the poster was not displayed in the break-rooms and the employe would not pass the poster on the way to the break-rooms.