RICHARD C BERTRAND, JR, Employee

COPS CONSTRUCTION INC, Employer

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:

The employee worked for the employer, a construction firm, from July 10, 2000 until December 1, 2000. A separate initial determination, which was not appealed by either party, found that the employee was discharged for misconduct and that he was overpaid benefits in the amount of $4,964.00. The appeal tribunal decision issued on August 17, 2001, amended the initial determination to find that the overpaid amount, which must be repaid by the employee, is actually $5,051.00.

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

The employer temporarily changed its mailing address from the home address of the employer's treasurer to a post office box. This change was in effect from November of 2000 through April of 2001. Although the employer did not notify the department of the address change, it did file a forwarding order with the United States Postal Service. On December 5, 2000, the department sent the employer a UCB-16 separation notice. The form was sent to the employer at its most recent address of record with the department, N1801 Van Cops Drive. Although this was not the employer's most current mailing address, it was the home address of the employer's treasurer, at which he still resided and could receive mail. However, the employer never received the UCB-16 and did not learn the employee was drawing benefits from its account until mid-April of 2001. Shortly thereafter the employer called the department to determine the status of its account. It then notified the department in writing of its objections to the employee's eligibility.

Wisconsin Statute § 108.04(13)(c), provides, in relevant part:

(c) If an employer, after notice of a benefit claim, fails to file an objection to the claim under sec. 108.09(1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer . . . . If the benefits are erroneously paid without fault on the part of the employer, regardless of whether the employe is at fault, the department shall charge the benefits as provided in par. (d), unless par. (e) applies, and proceed to create an overpayment under s. 108.22(8)(a). . . . (emphasis added).

Wisconsin Statute § 108.04(13)(f), provides, in part:

(f) 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 benefit claim under sec. 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 employer's failure to file the UCB-16 with the department in this case was not due to its fault. The employer did not file the separation notice because it did not receive it. Although the employer changed its mailing address, it took reasonable steps to ensure it would receive its mail by filing a change of address with the United States Postal Service. While it did not specifically advise the department of its new mailing address, it was not on notice of any requirement to do so. Moreover, because the department mailed the separation notice to the home address of the employer's treasurer, at which he still resided and could receive mail, there is no reason to believe that the employer's failure to notify the department of its new mailing address adversely affected its ability to receive the UCB-16.

The commission therefore finds that the employer was not at fault in failing to question the employee'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 affirmed in part and reversed in part. Accordingly, the employee is required to repay the sum of $5,051.00 to the Unemployment Reserve Fund. However, benefits paid to the employee in error as a result of the employer's failure will not be charged to the employer's account.

Dated and mailed November 20, 2001
bertrri . urr : 164 : 1  BR 319.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

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uploaded 2001/11/26