BRANDON M KAIVER, Employee
RICHARDSON INDUSTRIES 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 about seven months as an assembler for the employer, business that manufactures roof trusses. He was laid off by the employer on January 26, 2007 (week 4). He was recalled to work a full-time shift scheduled for the employer during the week of February 26 through March 2, 2007 (week 9), after which he was returned to lay-off status by the employer. He has not worked in subsequent employment with the employer or any other employing unit. He initiated his claim for benefits on January 29, 2007 (week 5).
As of January 12, 2007 (week 2) and continuing through February 23, 2007 (week 8), the employee was enrolled in college classes as a full-time student at a technical college, attending scheduled classes from 6:00 p.m. until 10:00 p.m. each Tuesday; from 6:30 p.m. until 9:30 p.m. each Wednesday, and from 12:30 p.m. until 3:20 p.m. each Friday. After February 23, 2007, the employee no longer attended his Tuesday evening class as it lasted only part of the semester and he had completed it. Other than his hours devoted to attending college classes, the employee was available for suitable employment opportunities during all other hours of the week and on any shift schedule. He had no restriction on the amount of wages he would be willing to accept for full-time employment or on his willingness to commute to and from a job.
The employee's labor market area included all or parts of Brown and Outagamie counties. Based on the employee's past work experience, training and education, and taking into consideration his unavailability for work during the hours of the day that he was attending his scheduled college classes, as of week 5 of 2007 and through 8 of 2007, and as of week 10 of 2007 when he returned to lay-off status and continuing thereafter, he was available for no more than 34 percent of all suitable jobs in his defined labor market area.
The issue to be decided is whether the employee was available for work in the employee's labor market as of week 5 of 2007.
The employee argued that he was available for full-time suitable work and that he should therefore be eligible for unemployment benefits. The commission agrees.
The statues 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.
The expert testimony at the hearing established that most suitable work in the employee's labor market area is performed during the daytime hours. As a result of the interference of the employee's college class attendance with work opportunities involving both first and second shift work schedules, the expert testimony established that he was only available for about 34 percent of all suitable jobs in his locality.
The employee credibly testified that in week 9 of 2007, he had worked in full-time employment during a one-week recall by the employer. Under such circumstances, it must be concluded that in week 9 of 2007, the employee was able to work and available for work.
In addition, although the employee's class schedule interferes with his availability for work, the employee indicated, on a department questionnaire about his college attendance, that he could change his class schedule to accept full-time work, first-shift work. He further indicated that he would be willing to accept full-time work. There is nothing in the record to contradict the employee's assertion in this regard. Further, the commission notes that the employee was taking only one class during the first shift making it more likely that he would be able to rearrange his class schedule or possibly drop that class to accept full-time first shift work.
The commission therefore finds that as of week 9 of 2007, the employee is able to work and or available for suitable 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 5 of 2007, if otherwise qualified.
Dated and mailed May 18, 2007
kaivebr . urr : 145 : 1 AA 205
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing prior to reversing his decision. The commission did not reverse the ALJ's decision based on a different impression of witness credibility and demeanor but rather based on the documentation in the file that indicated that the employee could rearrange his class schedule to accept full-time work.
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