MARGARET A SUTINEN, Claimant

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 claimant agreed to write a report for the Urban League. The claimant signed a contract to do so on August 7, 2001 (week 32). The contract provided that the claimant would be paid two $1800 installments on July 31 and September 30, 2001, or within two weeks of the completion of the report, whichever occurred first. In week 33 of 2001, the calendar week ending August 18, the claimant received $1800. In that week the claimant reported to the department that she was self-employed. On September 22 the claimant handed in her report. The claimant received a second $1800 payment in week 48 of 2001, the calendar week ending December 1.

On two occasions prior to starting work for the employer, the claimant had discussed with the unemployment insurance division that she was intending to take odd jobs and was wondering how to report the work she was doing. The claimant was advised to do her best.

Department records reflect that the department investigated the claimant's report that she was self-employed and on September 27 determined that she was not self-employed and had to report wages for work performed for the Urban League. The department took the number of weeks the claimant worked on the contract, eight weeks, and divided that into $3600 assessing $450 in wages in each week claimed.

The issue to be decided is whether the claimant concealed work performed and wages earned in weeks 31 through 33 of 2001, and in week 38 of 2001.

The statutes provide that wages are to be reported when earned. Therefore, the department appropriately spread the amount of the contract over the number of weeks in which the claimant worked. However, it is a different question whether the claimant meant to conceal from the department that she was working and earning wages. The payments the claimant received were not according to the schedule set forth in the contract. The claimant credibly testified that she was surprised to receive the first payment. The claimant notified the department in the week she received the payment of the services she was performing which prompted the department to investigate the relationship. The commission believes that had the claimant intended to conceal monies received she would not have raised a potential self-employment issue with the department. While it would have been preferable for the claimant to have raised the issue when she agreed to perform the work, that she did not act more promptly in alerting the department that she was performing services for pay does not establish she was concealing the same.

The commission therefore finds that in weeks 31 through 33 of 2001, and in week 38 of 2001, the claimant did not conceal from the department work performed/or wages earned or paid or payable for those weeks, within the meaning of Wis. Stat. § 108.04(11)(a).

The decision of the administrative law judge is reversed. Accordingly, the claimant shall not forfeit $1,252.00 in unemployment insurance benefits that become payable by December 8, 2007.

Dated and mailed July 18, 2002
sutinma . urr : 132 : 1 BR 330

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The ALJ indicated the claimant was a credible witness, in particular, when she testified that she did not know if she would be paid if she did not complete the report required by the contract. The ALJ believed however that the claimant should have contacted the department immediately after agreeing to perform services for the Urban League. The commission's reversal is not based on a differing impression of witness credibility. The commission like the ALJ finds the claimant's testimony to be credible.

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uploaded 2002/07/26