JAMES A ECKARDT, Employee
JENNICO 2 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 something over two years as a forklift operator for the employer, a cleaning chemical manufacturing business. His last day of work was August 2, 2006 (week 31), when the employer's business closed. He thereafter began a claim for unemployment insurance.
The statutes provide that a claimant is not eligible for benefits unless able to work and available for work. The Wisconsin Administrative code implements the statutes and provides that 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, if his or her physical condition or uncontrollable circumstances limit him or her to less than 15 percent of the opportunities for suitable work in the labor market, or if he or she, without good cause, fails to participate in an eligibility review interview.
The employee attends a technical college in pursuit of a nursing degree. He is currently taking 10 credits. He is not taking a full-time course load. His classes meet on Mondays, Thursdays and Fridays during first shift hours. The employee was willing to work first shift if he could work around his class schedule. Labor market information in the record indicates that, if the employee was not willing to work first shift, he would be available for 47.83 percent of the suitable work in his labor market. However, the employee in this case was willing to work first-shift hours that did not interfere with his class schedule.
The employee remains able to work and available for work under the same conditions that he previously worked in. At the time of the hearing the employee, who had been unemployed for about six weeks, had accepted a job as a nurse's aide. He also had a job offer that involved days, overnights and weekends, but had decided to accept the first job. The commission further notes that the employee has experience in food preparation. He also worked in restaurants, hotels, grocery stores, and country clubs, as wait staff and bartender. The employee also worked as a certified nursing assistant and worked for a few years driving a forklift at a home improvement products store. The commission notes that many of these jobs have work available on second or third shift. In addition, restaurant staff often works split shifts, so that the employee could work some first-shift hours, and that bartending work tends to occur mainly on the second shift. Further, he had worked for the employer while going to school and was laid off from the employer for reasons not related to his school attendance. The commission therefore concludes that the employee was, in spite of his controllable work restrictions, available for more than 50 percent of the suitable work in his labor market.
The commission therefore finds that as of week 35 of 2006, the employee was able to work and available for work, within the meaning of Wis. Stat. § 108.04(2)(a) and chapter DWD 128 of the Wisconsin Administrative Code.
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 35 of 2006, if otherwise qualified.
Dated and mailed November 10, 2006
eckarja . urr : 145 : 4 AA 205
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission notes that the employee testified that he was taking 10 credits, not 12 credits, as found by the ALJ. For the reasons stated in its decision, the commission reverses the ALJ's decision as a matter of law.
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