TABITHA D BROWN, Employee

SEEK CAREER/STAFFING INC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued two appeal tribunal decisions in these matters. Timely petitions for review were filed.

The commission has considered the petitions and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decisions of the ALJ, and it adopts the findings and conclusions in those decisions as its own.

The appeal tribunal decisions are affirmed. Accordingly, the employee is ineligible for benefits in weeks 30, 32, and 33 of 2014. She is eligible for benefits beginning in week 34 of 2014, if she is otherwise qualified. The employee is required to repay overpaid benefits totaling $381.(1)

Dated and mailed December 18, 2014

browntausd . doc : 132 : SW 800 : SW 885.10 : VL 1025 : BR 335.04

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The employee has petitioned for commission review of the appeal tribunal decisions which found that in weeks 30, 32, and 33 of 2014, the employee failed to conduct a reasonable search for work because she failed to contact the temporary help employer for an assignment.

The employee was required to perform a reasonable search for suitable work each week pursuant to Wis. Stat. § 108.04(2)(a)3. Wisconsin Stat. § 108.04(2)(i) provides:

1. There is a rebuttable presumption that a claimant who is subject to the requirement under par. (a) 3. to conduct a reasonable search for suitable work has not conducted a reasonable search for suitable work in a given week if all of the following apply:

a. The claimant was last employed by a temporary help company.

b. The temporary help company required the claimant to contact the temporary help company about available assignments weekly, or less often as prescribed by the temporary help company, and the company gave the claimant written notice of that requirement at the time the claimant was initially employed by the company.

c. During that week, the claimant was required to contact the temporary help company about available assignments and the claimant did not contact the temporary help company about available assignments.

d. The temporary help company submits a written notice to the department within 10 business days after the end of that week reporting that the claimant did not contact the company about available assignments.

2. A claimant may only rebut the presumption under subd. 1. if the claimant demonstrates one of the following to the department for a given week:

a. That the claimant did contact the temporary help company about available assignments during that week.

b. That the claimant was not informed by the temporary help company of the requirement to contact the temporary help company or had other good cause for his or her failure to contact the temporary help company about available assignments during that week.

3. If a claimant who was last employed by a temporary help company contacts the temporary help company during a given week about available assignments, that contact constitutes one action that constitutes a reasonable search for suitable work, for purposes of par. (a) 3.

The employee was last employed by the employer. Her last day of work was in week 26 of 2014. The employer notified the employee in writing when she was initially employed that she was required to contact the employer while waiting for another assignment. The employee testified that she did contact the employer in the weeks at issue. The employer testified that she did not. The critical question in this case is one of credibility. The employer's version of the facts and the employee's version of the facts are inconsistent. The commission realizes that it is seldom easy to resolve a case with two such conflicting versions of the facts. However, the ALJ who conducted the hearing was in a good position to make an assessment as to credibility and credited the employer's version. The commission agrees with that assessment and adopts it as its own. The employer submitted written notice to the department on August 7, 2014, that the employee failed to contact it for work in week 30 of 2014. The employer submitted written notice to the department on August 19, 2014, that the employee failed to contact it for work in weeks 32 and 33 of 2014.

The employee did not contact the employer in the weeks at issue and, as it was her claim that she did so, she did not establish good cause for failing to contact the employer in those weeks.

The employee states in her petition that she believes that the decision was unfair because she could have proven that she called the employer during week 32 but was denied the opportunity and not made aware that she should submit any documents before the hearing. However, the employee was advised that the hearings would address whether she performed reasonable work searches. The employee could have sent in her work search records before the hearing.(2) The employee further states that neither the Handbook for Claimants nor a claimstaker advised her of the requirement to contact the employer. However, the law does not require the department to provide that information. The law requires the employer to inform the employee that she must contact the employer about available assignments. The employer is also not required to inform the employee that she might be ineligible for benefits if she fails to contact the employer. What the employee was allegedly told after the fact is not relevant to whether she performed a search for work in the weeks at issue.

The ALJ further found that the employee was required to repay the erroneously paid benefits because the overpayment was not the result of departmental error. Departmental error is defined as an error made by the department in computing or paying benefits which results exclusively from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, whether by commission or omission, or misinformation provided to a claimant by the department on which the claimant relied. Wis. Stat. § 108.02(10e)(am)1. and 2.

The adjudicators found that Wis. Stat. § 108.04(2)(i) did not apply to the employee because the employer required that the employee contact the employer more frequently than weekly. The ALJ found that, for unemployment insurance purposes, the employee was not required to contact the employer more frequently than once per week. However, she was still subject to the requirement of Wis. Stat. § 108.04(2(i) to contact the employer at least once per week in order to be eligible for benefits. An interpretation of a statutory provision which disregards a contrary long-standing interpretation by the commission constitutes departmental error. Parker v. Cady Cheese Factor Inc., UI Dec. Hearing No. 05200982EC (Aug. 12, 2005). Wis. Stat. § 108.04(2)(i) is a recently enacted provision of the unemployment insurance law and this case is the commission's first occasion to interpret and apply its language. The adjudicators did not disregard any settled or long-standing interpretation of Wis. Stat. § 108.04(2)(i). While the commission and the ALJ have a different interpretation of that provision than the adjudicators' interpretation, the commission cannot conclude that the adjudicators' interpretation was unreasonable so that waiver of the recovery of overpaid benefits is required.(3)

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(1)( Back ) The employee was paid benefits of $127 for each of weeks 30, 32 and 33 of 2014.

(2)( Back ) Prior to the hearing being scheduled the department sent the employee and the employer a Hearing Instructions and Document Packet form. That form advised the parties to send any documents the parties wanted considered by the ALJ to the hearing office and the other party at least three days before the hearing.

(3)( Back ) Only recovery of the $127 overpaid for week 30 of 2014 could be potentially waived. The employee was paid benefits for weeks 32 and 33 of 2014, before the determination addressing those weeks was issued and therefore the overpayment in those weeks was not due to the adjudicator's interpretation of Wis. Stat. § 108.04(2)(i). 

uploaded 2014/02/20