MARK W HAEBIG, Claimant

NEWS PUBLISHING CO INC
OF MT HOREB, Employer

On May 5 and May 8, 2012, the department issued three determinations. The determinations held that in various weeks in 2008, 2009, and 2010, the claimant worked and earned wages,(1) concealed the work and wages, or a material fact on his weekly claims, and was overpaid benefits. The consequence of these determinations was that the claimant was not eligible for any benefits in the weeks of the concealment, and was overpaid unemployment insurance benefits in the amount of $8,172.00 that he was directed to repay. He was also overpaid Federal Additional Compensation (FAC) to be computed and repaid. Additionally, the claimant was to forfeit $8,875.00 in unemployment insurance benefits payable to him during the six-year period ending April 28, 2018.

The claimant, through his attorney, timely appealed and hearings were held before an administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development on July 12 and August 6, 2012. The ALJ issued three appeal tribunal decisions, affirming the determinations. A timely petition for review was filed, raising due process concerns regarding the fairness of the hearing. The commission concluded that there were sufficient anomalies in the record to justify setting the appeal tribunal decisions aside and ordering new hearings and decisions by a different ALJ. The original order was dated February 22, 2013, and was amended, on March 15, 2013, to clarify that a fourth hearing on the issue of whether the claimant was an independent contractor or was a statutory employee was to be conducted before the three hearings at issue.

The employee/independent contractor issue was held first and was assigned hearing number 13000909MD. On August 22, 2013, the commission affirmed the April 2, 2013 appeal tribunal decision which found that the claimant performed services as a statutory employee. That matter is currently on appeal in circuit court.

The same appeal tribunal who conducted the employee/independent contractor hearing was assigned to conduct the hearings at issue. The hearings were held on July 8, 2013.(2) The appeal tribunal modified the weeks of issue, found work and wages, and affirmed the concealment finding.(3) Consequently, the claimant was not eligible for any benefits in the weeks of the concealment; he was found to have been overpaid unemployment insurance benefits in the amount of $7,798.00 that he was directed to repay to the department. He was also found to have been overpaid FAC, to be computed by the department and to be repaid. Finally, the claimant was to forfeit $8,165.00 in unemployment insurance benefits payable to him during the six-year period ending April 28, 2018. The claimant timely petitioned for commission review of the appeal tribunal decisions.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ.(4) Based on its review, the commission makes the following:

The claimant worked full-time for Exel Inns of America (Exel) for 21 years. He started as an administrative assistant of the vice president and ended his tenure as the company controller.

Shortly after he started working for Exel, the claimant began writing for a local newspaper, the Mount Horeb Mail Newspaper. In particular, he attended local governmental meetings and authored articles on topics he considered newsworthy. He would submit each article for publication in the Mount Horeb Mail Newspaper and, if the article was chosen for publication, he then submitted an invoice for payment. He submitted meeting articles for publication typically twice per month. He was paid $48.00 per published story in 2008, 2009 and 2010. The invoice was submitted to the employer, News Publishing Co. Inc. of Mt. Horeb (News Publishing). For these services, he was issued a 1099 at the end of the year. In 2010, he earned less than $600 and, thus, was not issued a 1099 that year. He was never issued a W-2 form from News Publishing.

The claimant's employment with Exel ended in 2008 when the business was sold. When the claimant lost his full-time position, he initiated a claim for unemployment insurance benefits. He did not report his services for News Publishing at that time because he did not believe it was "work" as defined by the claimant handbook. The department no longer has a record of his initial claim. The claimant also did not consider his writing for News Publishing to be "self-employment," as it was not a formal business endeavor. The claimant based his opinion on the handbook language which indicated,

Answer "YES" if you are self-employed or operating your own business, i.e. farming, partnership, LLC or corporation.

Answer "NO" if you are selling Avon, Amway, Tupperware, etc. This is normally considered employment and you would report the income as wages. (However, if you feel this is self-employment, answer "YES" and the Department will contact you for further information.)

The claimant did not have a record of the actual dates the services for News Publishing were performed. Although News Publishing did not appear at the hearing held on July 8, 2013, it previously submit a Weekly Earnings Audit to the department, explaining that its records only allowed it to submit a ledger reflecting the invoice date, the payment date, and the gross amount paid. This was marked as Exhibit 5, and the claimant agreed with the information provided.

Table 1 – Summary of Exhibit 5 by UI week.

In this case, given the evidence available, the commission finds that the wages should be allocated to the week of the invoice - when the claimant knew his story would be published, and he created and submitted the invoice. This date is the best approximation of when the services were performed.

The claimant did not report his services for News Publishing as work and, also, did not report the monies paid to him by News Publishing as wages on his weekly claims.

A printout of the claimant's weekly claims was marked as Exhibit 7. The "DUCQ" inquiries reflect the questions the claimant was asked each week, the answers provided, and the claims method he used.(5) For each of the weeks reflected in Table 2, the claimant admitted that he answered "No" to the questions "Did you work?" and "Were you self-employed?"

Table 2 –Summary of Exhibit 7

The department conducted an audit of News Publishing and the payments to the claimant were investigated. The claimant provided information to the adjudicator to assist in the investigation.

During his claim for unemployment insurance benefits, in addition to writing for News Publishing, the claimant worked for the U.S. Census Bureau as an enumerator. He considered himself an "employee" of the Census Bureau. He reported his work and the wages on his claim certifications in each week that he worked. He also testified that there were occasions during his employment with the Census Bureau that his paychecks were delayed. The claimant was unaware of discrepancies with the reporting of Census Bureau work and wages.(6)

Of the weekly claim certifications marked as exhibits, only the certifications listed in the following Table 3, indicate work and wages from the Census Bureau.

Table 3 – Census Bureau Wages Reported by the Claimant.

There is no competent evidence in the record to establish that the claimant worked and earned wages with the Census Bureau in any weeks other than those he reported in Table 3.(7)

Claimants who file for unemployment insurance benefits are responsible for correctly and completely reporting information for each week they claim benefits, because benefits are initially paid based on the information claimants provide. Claimants who conceal information from the department when filing for benefits may be subject to overpayments and penalties. For unemployment insurance purposes, conceal means "to intentionally mislead or defraud the department by withholding or hiding information or making a false statement or misrepresentation."(8)

A claimant who conceals work performed or wages earned when filing a weekly claim certification is ineligible to receive benefits for the week claimed.(9) In addition, a claimant who conceals work performed, wages earned, or another material fact concerning benefits eligibility when filing a weekly claim certification is ineligible for benefits in an amount equivalent to two, four, or eight times the claimant's weekly benefit rate for each act of concealment.(10) This ineligibility is applied against benefits and weeks of eligibility for which the claimant would otherwise be eligible after the week of concealment.(11)

The appeal tribunal modified the weeks at issue but found that the claimant had the knowledge to either report the work and wages from News Publishing or to report the services performed as self-employment. The appeal tribunal found that the questions were not confusing and were straightforward. It found that the claimant knew he was performing work, he was not volunteering, and his failure to report his work, or the self-employment, was intentional and amounted to concealment.

The claimant petitioned for commission review. The issue to be decided is whether the claimant concealed work performed and wages earned from News Publishing, from the department when filing his weekly claim certifications for weeks 36, 38, 45, and 49 of 2008; weeks 1, 5, 10, 13, 18, 23, 26, 31, 36, 39, 40, 41, 46 and 49 of 2009; and weeks 8, 10, 15, 20, 26, 33 and 40 of 2010.

Work Performed and Wages Earned

Based upon the weeks at issue as set forth in the determinations, and the hearing record, the following table reflects the weeks in which the claimant did not report work and wages properly on his weekly claim certifications.

Table 5 – Work, wages and claim certifications.

The burden to establish that a claimant concealed information is on the department.(13) As a form of fraud, concealment must be proven by clear, satisfactory, and convincing evidence.(14) Concealment will not be found where a claimant makes an honest mistake or misinterprets information received from the department.(15) Concealment requires an intent or design to receive benefits to which the claimant knows he or she is not entitled.(16)

Based upon the summary set forth in Table 5, which is based upon the weeks at issue set forth by the determinations, there are eight weekly claim certifications in which the claimant did not report work and wages when he actually had work and wages from News Publishing. There is another weekly certification where he reported the Census Bureau work and wages but not the work or wages from News Publishing.(17) There is no evidence of any failure to report work and wages earned from the Census Bureau, or any other employing unit.

While the department has offered evidence of only nine incorrect weekly claim certifications, the claimant admitted that he did not report any work or wages or self-employment with News Publishing on his weekly claim certifications. For the weeks of work and wages with News Publishing,(18) the commission is not satisfied that concealment was established. The evidence in the record does not show that the claimant, when filing claims for the weeks at issue, had the requisite intent to receive benefits to which he knew he was not entitled. This is the key component in finding concealment and was not addressed in the appeal tribunal decisions.

Specifically, in this case, the claimant's actions and testimony revealed a fundamental misunderstanding of how the unemployment insurance program defines work and self-employment. The claimant did not consider his sporadic services for News Publishing, for which he earned minimal amounts for almost 20 years, to be a self-sustaining business, which he equated with self-employment. He was employed over 20 years by Exel and, when he lost his employment with it, he filed for unemployment insurance benefits. There is no evidence that the claimant ever filed for unemployment insurance benefits before he lost his Exel employment and no evidence that he had any experience with partial benefits. Further, there was no evidence that he was ever considered an "employee" by News Publishing or that he considered himself as such. His belief that the services were not "work" is incorrect, but it is also conceivable. He did not contact the department for assistance because he did not realize his misunderstanding. Moreover, the claimant's actions of properly reporting the part-time Census Bureau work on his weekly claim certifications, and his cooperation with the department when the issue arose concerning his services for News Publishing supports his contention that he was not attempting to receive benefits to which he was not entitled. Under these circumstances, the commission finds that the claimant misinterpreted information he received from the department but did not act with an intent or design to receive benefits to which he knew he was not entitled.

The commission therefore finds that in weeks 36, 38, 44, 49 and 52 of 2008; weeks 4, 9, 12, 18, 22, 25, 31, 35, 40, 44 and 48 of 2009; and in weeks 8, 10, 14, 16, 26, 31 and 40 of 2010, the claimant worked and earned wages as reflected in Table 1, but he did not conceal from the department the work performed and the wages earned in those weeks, within the meaning of Wis. Stat. § 108.04(11), and is thus entitled to partial benefits for those weeks, pursuant to Wis. Stat. § 108.05(3).(19)

The commission further finds that the claimant's failure to report work and wages on his weekly claim certifications for weeks 36, 38, 44, 49 and 52 of 2008; weeks 4, 9, 12, 18, 22, 25, 31, 35, 40, 44 and 48 of 2009; and weeks 8, 10, 14, 16, 26, 31 and 40 of 2010 was not fraudulent. However, while not fraudulent, there was no department error in the payment of benefits and there will be no waiver of recovery of the overpayment, under Wis. Stat. § 108.22(8)(c).

The matter will be remanded to the department for a recalculation of the claimant's overpayment in light of his eligibility for partial benefits for the weeks at issue.

DECISION AND ORDER

The appeal tribunal decisions are modified to conform with the above and, as modified, the decisions are affirmed in part and reversed in part. Accordingly, the claimant is entitled to partial unemployment insurance benefits in weeks 36, 38, 44, 49 and 52 of 2008, weeks 4, 9, 12, 18, 22, 25, 31, 35, 40, 44 and 48 of 2009, and weeks 8, 10, 14, 16, 26, 31 and 40 of 2010. As a result of this decision, the claimant shall not forfeit future unemployment insurance benefits.

This matter is remanded to the department for a calculation of the claimant's entitlement to partial unemployment benefits for the weeks at issue and any corresponding overpayment.

Finally, the commission notes that the hearing office has two determinations pending hearing. The determinations under appeal are Determination No. 130445640, assigned Hearing No. 13004401MD, and Determination No. 130461920, assigned Hearing No. 13004400MD.

• Determination No. 130445640 dealt with the issue of whether the claimant was an exhaustee for Extended Benefits (EB); the determination found that he was not eligible for EB from July 4 through 17, 2010 and was overpaid unemployment benefits in the amount of $710. 00 that would have to be repaid.

• Determination No. 130461920 dealt with the issue of whether the claimant was an exhaustee for Emergency Unemployment Compensation (EUC08); the determination found that he was not eligible for EUC08 as of August 2, 2009 and was overpaid unemployment benefits in the amount of $13,136.00 that would have to be repaid.

Based upon the fact that the commission's finding of no concealment results in partial eligibility for benefits that were previously found to have been overpaid, the computations underlying these determinations may have changed. While the commission does not have the authority(20) to set these non-final determinations aside and direct the issuance of new determinations, the commission advises the claimant and his attorney to contact the department regarding whether a withdrawal of the requests for hearings would be prudent for redetermination of the claimant's eligibility for EUC08 and EB and any corresponding overpayment. A copy of this decision will be sent to the department and to the Madison Hearing Office.

Dated and mailed January 31, 2014

haebima_urr . doc : 150 :   BR 330 

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: The commission did not consult with the ALJ before reversing the appeal tribunal decisions. The commission must only consult with an ALJ with respect to his or her impressions and conclusions regarding the credibility of witnesses in situations where the ALJ heard conflicting testimony and the commission reverses the ALJ and makes contrary findings. See Braun v. Indus. Comm'n, 36 Wis. 2d 48, 57, 153 N.W.2d 81 (1967). In this case, there was no conflicting testimony. The claimant did not dispute that he wrote articles for News Publishing or that he was paid the amounts set forth in Table 1 for those services.

cc: ATTORNEY WILLIAM DUSSO

BUREAU OF BENEFITS, UI DIVISION

MADISON HEARING OFFICE

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

(1)( Back ) The determinations addressed weeks 36, 38, 45, and 49 of 2008; weeks 1, 5, 10, 13, 18, 23, 26, 31, 36, 39, 40, 41, 46 and 49 of 2009; and weeks 8, 10, 15, 20, 26, 33 and 40 of 2010. For weeks 36, 38, 45, and 49 of 2008 and weeks 1, 5, 10, 13, 18, 23, 26, 31, 36 of 2009, the determination listed that wages were earned from News Publishing Co. The determination addressing weeks 39, 40, 41, 46 and 49 of 2009, and weeks 8, 10, 15, 20, 26, 33 and 40 of 2010 did not indicate a specific employer but only indicated that wages were earned with "multiple employers." The claimant's attorney objected to the sufficiency of the hearing notices, and the commission agrees that it would be beneficial if the department's determinations specifically listed the employers from which the wages are attributed. However, the commission will not set the determinations aside based upon this failure.

(2)( Back ) No employers appeared, and the ALJ conducted one hearing for all three hearing numbers.

(3)( Back ) The appeal tribunal did not seek a waiver of jurisdiction to modify the weeks at issue.

(4)( Back ) At the hearing, the ALJ incorporated the record of hearing no. 13000909MW into the record of this matter. Pursuant to its March 15, 2013 amended order, the commission did not consider any evidence from the July 12 and August 6, 2012 hearing record in reaching its decision.

(5)( Back ) The department's witness testified that the DUCQ records were taken strictly from the claimant's answers on his weekly claim certifications. She explained that the existence of a second DUCQ record for certain weeks (labeled as DUCE claims and dated March 22, 2012), was based upon the deletion of an additional question related to the extended benefits (EB) program.

(6)( Back ) Again, the commission notes that the determinations in these matters did not specify that weeks of work and wages were attributed to the Census Bureau. The Census Bureau was not named as a party and was not sent a hearing notice.

(7)( Back ) Exhibit 8 reflects work and wages from the Census Bureau in weeks 39, 40, 41, and 42 of 2009 in the amounts of $481.00, $208.00, $78.00 and $0.00. No witness appeared to testify as to the accuracy of the document.

(8)( Back ) Wis. Stat. § 108.04(11)(g).

(9)( Back ) Wis. Stat. § 108.05(3)(d).

(10)( Back ) Wis. Stat. § 108.04(11)(a), (b) and (be).

(11)( Back ) Wis. Stat. § 108.04(11)(bm).

(12)( Back ) The department's witness was not the adjudicator who issued the determinations. The witness indicated that there were some errors in weeks adjudicated (i.e. week 41 of 2009 was accurately reported and should not have been included in the concealment or overpayment), and the witness opined that the adjudicator was inconsistent in the allocation of work and wages from News Publishing as to invoice or pay date.

(13)( Back ) In re Scott Lynch, UI Dec. Hearing No. 10404406AP (LIRC Mar. 11, 2011); Holloway v. Mahler Enter., Inc., UI Dec. Hearing No. 11606291MW (LIRC Nov. 4, 2011).

(14)( Back ) Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 98, 98 N.W.2d 403 (1959); Schroeder v. Drees, 1 Wis. 2d 106, 112, 83 N.W.2d 707 (1957).

(15)( Back ) In re Joseph Hein, Jr., UI Dec. Hearing No. 00605374MW (LIRC Dec. 13, 2001); In re Scott Lynch, supra.

(16)( Back ) Karandjeff v. Cmty. Living Alliance Inc., UI Dec. Hearing No. 11611430MW (LIRC June 20, 2012); In re Nestor Gutierrez, UI Dec. Hearing No. 00005766MD (LIRC July 19, 2002).

(17)( Back ) Given that the record does reflect work and wages in other weeks from News Publishing as set forth in Table 1, the commission will remand for a determination reflecting the claimant's eligibility for partial benefits in those weeks.

(18)( Back ) See Table 1, weeks 36, 38, 44, 49 and 52 of 2008; weeks 4, 9, 12, 18, 22, 25, 31, 35, 40, 44 and 48 of 2009; and in weeks 8, 10, 14, 16, 26, 31 and 40 of 2010.

(19)( Back ) The commission has modified the weeks at issue based upon the testimony from the claimant as to his weekly claims, and the wages earned from News Publishing. The commission notes that the record does not support a finding of concealment for any weeks - the claimant lacked the intent to receive benefits to which he knew he was not entitled and, the department has not offered evidence as to the claimant's weekly claim certifications for weeks 44 and 52 of 2008; weeks 4, 9, 12, 22, 25, 35, 44 and 48 of 2009; and weeks 14, 16, and 31 of 2010, the "new" weeks at issue based upon the wage records from News Publishing.

(20)( Back ) Wis. Stat. § 108.09(6). 

uploaded 2014/02/28