THOMAS F WOZNY, Employee

BLUE KNIGHT POLICE LTD, 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 two years and four months as a security officer for the employer, an operator of a contract security business. He continues to be employed.

The employee has worked for the employer part time on weekends. He also works full time during the week for another employing unit. He was laid off briefly from the full-time job. The employer scheduled him to work on Tuesday, Wednesday and Thursday, November 27, 28, and 29, 2007 (week 48). The employee was told to report for his schedule but did not do so because he did not want to work third shift. The hours were to be third shift from 11:30 p.m. to 7:30 a.m. The employee would have been paid $8.50 per hour.

The issue to be decided is whether the employee was with due notice called on by the current employing unit to report for work actually available during week 48 of 2007, whether the employee as available for that work and the amount of wages the employee would have earned in that week by performing all of the available work.

Wisconsin Statute § 108.04(1)(a), provides that eligibility for benefits shall be reduced for any week in which the employee is called with due notice by his current employing unit to perform work available and is unavailable to perform some or all of such work.

Generally, no inquiry is made as to why the employee does not perform the work offered, because the reason is not relevant. See, e.g., Nancy L. Whitehead vs. LIRC and Midwestern Performance Assessment Center, Inc., Case Numbers 00-CV-280 & 00-CV-281 (Wis. Cir. Ct., Washington Co., December 6, 2000) (to read an employee's personal circumstances into the due notice requirement would destroy the uniformity and consistency needed to apply the statute in any rational manner); and Benz v. Johnson School Bus Service Inc., (LIRC Oct. 22, 2001) (the law does not inquire into the reason the employee failed to perform all available work, only whether the employee failed to perform all available work) The commission has previously found that work is not actually available if the employee is physically/mentally incapable for performing the work or the work would be performed under conditions that jeopardized a worker's health or safety. See, e.g. Linneman v. Steel Forms Construction Inc., (LIRC June 3, 1994)(workers who decline to work outdoors in extremely cold weather have not with due notice been called upon for work actually available) and Wodack v. Medical Staffing Network Inc., (LIRC May 14, 2004)(work not available where employee who had a severe allergy to dogs was offered work where a dog would be present).

In this case, the employee was not incapable of performing the work and the work would not have jeopardized his health or safety. It does not matter whether the employee was hired to work a particular shift or on particular days. The employee's current employing unit offered the employee work that was available to him. The employee failed to perform that work.

Wisconsin Statute § 108.04(1)(a) further provides that the amount the employee could have earned performing all work available is treated as wages, and benefits payable are computed by using the method set forth in Wis. Stat. § 108.05(3)(a). Under Wis. Stat. § 108.05(3)(a), the first $30.00 of wages is disregarded and the employee's weekly benefit payment is reduced by 67% of the remaining amount.

The employee previously reported earning wages of $136.00 in week 48 of 2007. The employee could have worked 24 hours at $8.50 per hour and earned an additional $204.00. The employee's wages, earned and imputed to him, in week 48 of 2007 total $340.00. Sixty-seven percent of $310.00 is $207.70. The employee's weekly benefit rate of $355 is therefore reduced by $207.70 leaving $147.30. Pursuant to Wis. Stat. § 108.05(9), benefits for a week of partial unemployment shall be rounded down to the next lowest dollar. The employee was therefore entitled to benefits in the amount of $147.00 in week 48 of 2007. The employee was paid $283 in benefits in week 48 of 2007. Accordingly, the employee was overpaid benefits in the amount of $136.00.

The commission therefore finds that in week 48 of 2007, the employee was with due notice called on by his current employing unit to perform work available and was unavailable for some or all of such work, within the meaning of Wis. Stat. § 108.04(1)(a).

The commission further finds that the employee was paid benefits in the amount of $136.00 for week 48 of 2007, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied. The overpayment in this case was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, in week 48 of 2007 the employee is eligible for benefits in the amount of $147.00. The employee is required to repay the amount of $136.00 to the unemployment reserve fund.

Dated and mailed May 8, 2008
woznyth . urr : 132 : 1 : AA 110

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on the credibility of the witnesses. The cases cited by the ALJ, as noted by the employer, involve circumstances where it was held that work was not "available" to the individual because of either extreme weather conditions or a medical condition. In this case, the employee could perform this work, the employee simply did not want to work third shift.

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uploaded 2008/05/22