BETSAIDA CAMACHO, Employee
SITE STAFFING 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 10 months as a food server for the employer, a temporary employment agency. Her last day of work was June 13, 2008 (week 24) when her assignment ended. She contacted the employer that day to notify them of the assignment's end and to ask for a new assignment. The employee had been working part-time, first shift and making $11.00 an hour. That same day the employer offered the employee full-time, second shift work as a sorter making $8.00 an hour. The start date for the job was June 16, 2008 (week 25). When the employee applied for work with the employer she indicated her willingness to accept jobs in the pay range of $8.00 an hour and higher.
The initial issue to be decided is if the employee quit or failed to accept an offer of work.
The employee's assignment ended on June 13, 2008. When the employee notified the employer that the assignment had ended the employer immediately offered the employee another assignment that met the conditions of work set forth in the employee's application for employment. Therefore pursuant to Wis. Admin. Code § DWD 133.02(1) the employer and employee were considered to be in a continuing employment relationship. The employee refused the assignment. Pursuant to Wis. Admin. Code § DWD 133.02(3)(a)2., the employee voluntarily terminated her employment.
The next issue to be decided is whether the employee voluntarily terminated her work for any reason that permits immediate benefit payment.
The employee refused the employer's offer of work because her personal circumstances had changed since she originally applied for work and she could no longer work second shift. The employee therefore refused the offer for personal reasons and not due to unreasonable action on the part of the employer or for any other reason that would allow immediate benefit payment.
The commission therefore finds that in week 25 of 2008, the employee voluntarily terminated her employment within the meaning of Wis. Stat. § 108.04(7)(a) and not for any reason constituting an exception to that section.
The commission further finds that the employee was paid benefits in the amount of $735.00 for weeks 25 through 28 and weeks 31 through 33 of 2008, 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 the result of departmental error. The ALJ erroneously analyzed the matter as a failure to accept new work and applied the labor standards provision to the employer's offer of work. However, pursuant to ch. DWD 133 the employment relationship was ongoing and the employee's refusal of the offered assignment was a voluntary termination. (1) The employee was not being offered new work but ongoing work that satisfied the conditions under which she agreed to work for the employer.
The commission further finds that waiver of benefit recovery is required under Wis. Stat. § 108.22(8)(c), because the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), and the overpayment was the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.
The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 25 of 2008, and until four weeks elapse since the end of the week of quitting and the employee has earned wages in covered employment equaling at least 4 times the weekly benefit rate which would have been paid had the quitting not occurred. The employee is not required to repay the sum of $735.00 to the Unemployment Reserve Fund.
Dated and mailed November 12, 2008
camacbe . urr : 132 : 1 :
VL 1025 BR 335.01
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission did not consult with the ALJ regarding witness credibility and demeanor. The commission's reversal is not based on credibility.
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