JODI L HONEA, Employee
BOU-MATIC LLC, 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 issued a decision in this matter on March 30, 2012. The claimant thereafter contacted the department questioning the weeks involved. The commission agrees with the claimant's assertion that there was an error with respect to the weeks involved and pursuant to Wis. Stat. § 108.09(6)(c) sets it aside and, pursuant to Wis. Stat. § 108.09(6)(d), reissues it below:
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:
On October 6, 2011 (week 41 of 2011), the claimant traveled to the country of Belgium with her boyfriend, a native of Belgium. While there, the claimant's boyfriend accepted a job offer in Belgium and the claimant decided to move there. The claimant returned to Wisconsin between October 17 and 25, 2011 (week 43 and 44 of 2011), to pack and say goodbye to friends and family. The claimant was in Belgium for the period of October 26 to December 28, 2011 (weeks 44 to 53 of 2011). The claimant returned to Wisconsin between December 29, 2011 and January 2, 2012 (weeks 53 of 2011 and 1 of 2012) to visit friends and family for the holidays. The claimant has been in Belgium since January 3, 2012 (week 1 of 2012), with the intention of continuing to reside in Belgium.
Since October 6, 2011 (week 41 of 2011), the claimant has not had any restrictions regarding her physical or psychological ability to perform work. However, it must also be determined whether the claimant voluntarily restricted her availability for work.
On November 8, 2011 (week 46 of 2011), the claimant told the department that she could not attend a re-employment services program on November 9, 2011 as instructed by the department because she was in Belgium. In response, the department told her that she did not have to attend the program on November 9, 2011.
The first issue to be decided is whether the claimant was able to work and available for work since October of 2011.
Wis. Stat. § 108.04(2)(a) requires claimants to be able to work and available for work in order to be eligible for benefits that week.
According to Wis. Admin. Code § DWD 128.01(3), in order to meet the able to work requirement a claimant must maintain an attachment to the labor market and have the physical and psychological ability to engage in some substantial and gainful employment in suitable work.
According to Wis. Admin. Code § DWD 128.01(4), in order to meet the available for work requirement, the claimant must maintain an attachment to the labor market and be ready to perform full-time suitable work in the labor market area. In determining whether the claimant has withdrawn from the labor market, the department shall consider one or more factors, including absence from the labor market for more than 48 hours during any week and any other unreasonable restrictions on working conditions.
As of October 6, 2011, (week 41) the employee withdrew from the labor market because she was on a vacation in Belgium. The employee then decided to remain in Belgium and returned to Wisconsin on October 16 (week 43). Although the employee returned to Wisconsin on the first day of week 43 she was not available for work at that time because she was in the process of moving to Belgium. She testified that she was saying goodbye to family and friends and making preparations to move to Belgium. As of week 44 of 2011, the employee was in Belgium and searching for work. As such, the employee was able to work and available for work from week 44 until week 52 of 2011. In week 53 of 2011 she returned to Wisconsin. She was not able to work and available for work because she was spending the holidays with her family. While she was in Belgium part of week 53, of 2011, given the amount of travel time involved to get to Wisconsin from Belgium, the employee was likely traveling much of December 28. Thus, she was absent from her new labor market for more than 48 hours. It was not established that she would have returned to Belgium within 24 hours had she received an offer of work. The employee returned to Belgium on January 3, 2012, which is Tuesday of week 1 of 2012. The employee was in Wisconsin for the purpose of spending the holidays with her family. The commission is not convinced that the employee would have returned to work prior to the end of her vacation to accept work. The employee was absent from her new labor market for more than 48 hours in this week and was not available for work.
Therefore, with respect to the weeks during which the employee was in Belgium and on vacation or in Wisconsin moving, the commission agrees with the ALJ's decision that she was not able to work and available for work in Wisconsin. However, once the employee actually moved to Belgium that country became her labor market. As such, her inability to accept work in Wisconsin does not mean that she was not available for work in her new labor market. The employee testified at the hearing that she was completing paperwork that would enable her to have the same rights as a Belgian citizen. The employee was actively looking for work in Belgium. In addition, by the time of the hearing, the employee had secured a job. In
Bailly v. Yamaha Motor Corp USA, UI Dec. Hearing
No. 11603403MW (LIRC September 30, 2011) the commission determined that a claimant who had moved to China on a permanent basis and was looking for work there had changed his labor market to China.
The commission therefore finds that in week 41 through week 43 and weeks 53 of 2011 and week 1 of 2012, the claimant was not 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. However, in weeks 44 through 52 of 2011, and beginning in week 2 of 2012, the claimant 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 commission further finds that the employee was paid benefits for each of weeks 41 through 43 of 2011, amounting to a total of $1,068; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.
The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22 (8)(c)2.
The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is eligible for benefits in weeks 44 through 52 of 2011. The employee is ineligible for benefits in weeks 41 through 43 and week 53 of 2011. The employee is ineligible for benefits in week 1 of 2012. Thereafter, the employee is eligible for benefits if otherwise qualified. The employee is required to repay the sum of $1,068 to the unemployment reserve fund.
Dated and mailed June 13, 2012
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission modified the ALJ's decision because it concluded that the employee had changed her labor market and was available for work during times when she was not otherwise engaged in moving or on vacation.
honeajo . urr : 145 : 5
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