Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Debra Brosman v. LIRC and City of Appleton (Wis. Cir. Ct., Winnebago Co., October 29, 2012), Debra L. Brosman v. LIRC, No. 2012 AP 2759 (Ct. App., District II, Sept. 25, 2013)

Please note that Wis. Stat. § 809.23(3) provides that, except as allowed therein, an unpublished decision of the Court of Appeals is of no precedential value and for that reason may not be cited in any court in this state as precedent or authority. Summaries of unpublished Court of Appeals decisions are included in this collection as an informational service only, and their use contrary to 809.23(3) is not encouraged.

Digest Codes: AA 285

The employee had worked as a communications technician for the City of Appleton, earning $16.03 per hour. She quit that work to take a job with Delta Airlines. She was laid off by Delta, and initiated a claim for unemployment benefits. She anticipated recall at an unspecified date, so the department waived her work search requirement.

The city offered the employee a temporary part-time position performing the same duties she previously had performed. The employee declined the offer, in part because she did not consider it a bona fide one. The employee's rejection of the offer raised the issue whether she was generally available for work. At hearing, the employee was equivocal as to the lowest rate of pay she would accept to work. She first indicated that she would like to "stay where I am," but did not explain what she meant by that. She next indicated that, for a retail position, the lowest rate of pay she would accept was $15 per hour. Upon further questioning, she indicated that, for any employment, her minimum acceptable wage was $17 per hour.

The commission held that the employee had good cause, pursuant to Wis. Stat. §§ 108.04(8)(a) and (9)(b), to reject the city's offer of work. The commission also held the employee to the last wage restriction she gave at hearing, however, $17 per hour. Because that wage was higher than the $16.03 per hour she previously had received from the city, she was ineligible for benefits by operation of Wis. Admin. Code § DWD 128.01(4)1. (which requires that a claimant's wage demand be reasonably comparable to wages the claimant was paid during the time period beginning with the claimant's base period).

The circuit court affirmed in a bench decision. The employee argued that her due process rights were denied because she did not understand why the administrative law judge was asking her what her minimum wage restriction was. The court disagreed, reasoning that the administrative law judge did not have an obligation to explain the purpose of the questioning.

Held: The court of appeals summarily AFFIRMED. The court noted that the administrative law judge (read commission) chose to base its decision on the $17 per hour answer, and reasoned that it does not have the power to weigh the evidence and disturb that finding. The court also rejected the employee's claim that the administrative law judge's failure to explain the reason for the line of questioning about wages deprived her of due process. First, the hearing notice indicated that the employee's availability for work was at issue, and specifically referred to Wis. Admin. Code ch. DWD 128. Second, at the beginning of the hearing, the administrative law judge identified the employee's availability for work as one of the issues for the hearing. Third, near the end of the hearing the administrative law judge explained that she asked the questions about the lowest rate of pay the employee would accept, because the employee had to be available for other work in her labor market area.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]