DENNIS R PARKER, Employee
CADY CHEESE FACTORY 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 about 11 months performing packaging clean up and packaging work for the employer, a cheese manufacturer. That job ended on August 23, 2004 (week 35).
The employee next worked about 6 months for an electrical business performing clean up and electrical work. That job ended Monday, April 11, 2005, when the employee was laid off.
Most recently, the employee started employment in the calendar week ending May 14, 2005 (week 20).
Throughout this period, the employee was attending a local high school and attended classes in the morning until 12:30 when he was released for work-based learning in the afternoon. The employee reactivated a claim for unemployment insurance benefits in week 16 of 2005 and claimed benefits through week 19 of 2005. He graduated from high school on Sunday, June 5, 2005 (week 24).
The employee's school attendance limited him to approximately 40 percent of the suitable work in his labor market. Wis. Stat. § 108.04(2)(a) provides that in order to be eligible for unemployment insurance benefits in any week of total unemployment, a worker must be able and available for work.
The issue to be decided is whether the employee was able to work and available for work in his labor market beginning in week 16 of 2005.
Wis. Admin. Code § DWD 128.01(1) provides that to be eligible for benefits in any week of total unemployment, the employee must be able to work and available for work. A claimant will not be considered able to work and available for work if he or she, without good cause, restricts him or herself to less than 50 percent of the full-time opportunities for suitable work in the labor market. See Wis. Admin. Code § DWD 128.01(2)(a). A worker with uncontrollable restrictions must be able to work in at least 15 percent of the suitable work in his or her labor market in order to be considered able to work and available for work. See Wis. Admin. Code § DWD 128.01(2)(b).
In this case, in weeks 16 through 19 of 2005, the employee was totally unemployed and had a controllable restriction of school attendance. That restriction limited him to less than 50 percent of the suitable work and, consequently, he should be denied unemployment benefits unless there is good cause for that limitation. The commission has repeatedly held that high school attendance does not constitute good cause for restricting one's availability to work. Lang v. General Business Services Inc., UI Dec. Hearing No. 98003796MD (LIRC February 16, 1999); Hines v. Advanced Health Care SC, UI Dec. Hearing No. 02600959MW (LIRC July 17, 2002).
Beginning in week 20 of 2005, the employee was partially employed. Wis. Admin. Code § DWD 128.01(5) provides that the department may require a claimant who is partially employed to comply with the able to work and available for work requirements of the administrative code if there is some definite indication that the claimant is genuinely not interested in working full-time. In this case, the record does not support a finding that the claimant was not genuinely interested in working full-time. In particular, he was in the final weeks of his high school attendance and testified that he was willing to work full-time as long as it avoided his morning classes.
Based upon the commission's reversal of the appeal tribunal decision regarding the employee's eligibility for benefits in weeks 16 through 19 of 2005, the employee was overpaid benefits totaling $296.00. The administrative law judge's finding that the employee's school attendance constituted good cause was contrary to long standing commission interpretation. As such, the commission finds that the overpayment was the result of department error and without fault on the claimant's behalf. He is, therefore, not required to repay the overpaid benefits.
The commission therefore finds that in weeks 16 through 19 of 2005, the employee was not able to work and/or available for suitable work, within the meaning of Wis. Stat. § 108.04(2)(a) and Wis. Admin. Code § DWD 128. Further, the commission finds that as of week 20 of 2005, the employee was not subject to the availability requirements because he was partially employed within the meaning of Wis. Stat. § 108.04(2)(a), and Wis. Admin. Code § DWD 128. The commission finally finds that waiver of overpayment recovery is waived under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the claimant or the employer as provided in Wis. Stat. § 108.04(13)(f) and the overpayment was a result of department error within the meaning of Wis. Stat. § 108.02(10e)(a) and (b).
The decision of the administrative law judge is amended as to weeks of issue and as amended, is reversed in part and affirmed in part. Accordingly, the employee is ineligible for benefits in weeks 16 through 19 of 2005 but is eligible for benefits beginning in week 20 of 2005, if otherwise qualified. The employee is not required to repay the sum of $296.00 dollars to the unemployment insurance reserve fund.
Dated and mailed August 12, 2005
parkede . urr : 150 : 8 AA 205 BR 335.01
/s/ James T. Flynn, Chairman
David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not confer with the administrative law judge prior to reversing her decision. The commission's reversal is based upon the undisputed facts in the record and the legal conclusion to be drawn therefrom.
cc: Daniel J. LaRocque
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