JINESSE DABO, Employee

PERSONALIZED PLUS HOME HEALTH, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued two appeal tribunal decisions in this matter.

• For Hearing No. 14609522MW, the ALJ held that the employee worked and earned wages in weeks 19 through 22 and 26 through 36 of 2014 and that she concealed that work and those wages on her weekly claim certifications. The employee was required to repay the amount of $3,328 to the Unemployment Reserve Fund for benefits she received to which she was not entitled. The employee was also assessed and required to pay a penalty of 15 percent of that amount.

• For Hearing No. 14609523MW, the ALJ held that the employee concealed work and wages on her weekly claim certifications for weeks 19 through 22 and 26 through 36 of 2014. As a result, in addition to the concealment overpayment penalty assessed for Hearing No. 14609522MW, there is to be a reduction of $7,680 in benefits that might otherwise become payable during the six-year period ending October 31, 2020.

The employee filed a timely petition for review. 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 has worked part-time as a home health aide for the employer since May 14, 2013. She typically works between 12 and 20 hours per week and is paid $9.50 per hour. English is not the employee's first language; French is her native language.

The employee filed weekly claims for benefits for weeks 19 through 23 and 25 through 36 of 2014, the calendar weeks ending May 10 through June 7 and June 21 through September 6, 2014. In each of those weeks, with the exception of two, the employee did not report that she worked for the employer or that she earned any wages. For weeks 23 and 25 of 2014, the employee's claims were completed by a department representative. Those were the only weeks during the time period in issue when it was reported that the employee worked for the employer and earned wages. She did not file a claim for week 24 of 2014.

The employee used a computer to file her weekly claims for weeks 19 through 22 of 2014. Thereafter, she used a telephone to file her weekly claims, because filing by telephone did not require her to travel to the local technical college to access a computer.

The employee did not dispute the number of hours she worked as reported by the employer during the weeks at issue or that she did not report that work and those wages on her weekly claim forms for weeks 19 through 22 and 26 through 36 of 2014, as shown below:

The employee did not answer "Yes" to the weekly claims question "During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?" for weeks 19 through 22 and 26 through 36 of 2014 because she did not understand the question. She missed the "work" part of the question and had not received and would not receive sick pay, bonus pay, or commission. The employee did not call the department to ask for assistance with filing her claims for those weeks because she thought she was filing correctly. The employee had received assistance from the department for weeks 23 and 25 of 2014. She did not realize that she was not filing correctly for the weeks at issue until she received a letter from the department about fraud.

When the employee filed online, a computer screen told her to access an informational handbook. The employee accessed the department's Handbook for Claimants online and read it. However, she was not sure that she understood it, because the handbook is in English and her native language is French.

Issues

The issues to be decided are whether the employee concealed work and wages from the department when filing her claims for unemployment benefits for weeks 19 through 22 and 26 through 36 of 2014; whether she received benefits to which she was not entitled and which she must repay; and whether concealment penalties and future benefit reductions must be assessed.

Concealment

The standards and burden of proof for concealment were explicitly set forth in Hollett v. Shaffer, UI Dec. Hearing Nos. 13003690MW and 13003691MW (LIRC Apr. 30, 2014), aff'd, Wis. Dept. of Workforce Dev. v. Wis. Labor & Indus. Rev. Comm'n and Hollett, Case No. 14 CV 331 (Wis. Cir. Ct. Sauk Cnty. Jan. 22, 2015):

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."

A claimant who conceals work performed or wages earned when filing a weekly claim certification is ineligible to receive benefits for the week claimed. 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. This ineligibility is applied against benefits and weeks of eligibility for which the claimant would otherwise be eligible after the week of concealment. Furthermore, consistent with federal directives, the department assesses a penalty against the claimant in an amount equal to 15 percent of the benefits erroneously paid to the claimant as a result of one or more acts of concealment.

A claimant is presumed eligible for unemployment insurance benefits, and the party resisting payment must prove disqualification. The burden to establish that a claimant concealed information is on the department. As a form of fraud, concealment must be proven by clear, satisfactory, and convincing evidence.

The unemployment insurance law must be "liberally construed to effect unemployment compensation coverage for workers who are economically dependent upon others in respect to their wage-earning status." Laws imposing forfeitures, by contrast, must be strictly construed to narrow the range of acts that will lead to the harsh result of a forfeiture. As a result, concealment will not be found where a claimant makes an honest mistake or misinterprets information received from the department. Concealment requires an intent or design to receive benefits to which the claimant knows he or she is not entitled. The existence of fraud in the form of concealment must be resolved on a case-by-case basis. Because direct proof of a claimant's intent is rarely available, fraud may be proven by indirect (circumstantial) evidence and reasonable inferences drawn from the facts. There is a rebuttable presumption that parties intend the natural consequences of their actions.

... (footnotes omitted).

Concealment may be established through direct evidence, such as an admission by the claimant that incorrect information was provided to the department with the intent to receive benefits to which the claimant was not entitled, or indirect evidence from which such intent can be inferred. Such inference cannot be satisfied by demonstrating merely that incorrect information was provided when filing a weekly benefit claim.(1) Concealment will not be found where a claimant makes an honest mistake, misinterprets information received by the department, or misunderstood his or her obligations and benefit rights under the unemployment insurance law.(2)

In this case, the ALJ concluded that the employee's incorrect answers to the question posed by the claiming system which asked if during the week claimed the employee received sick pay, bonus pay or commission, as well as asking if work was performed during the week, were not the result of mere negligence or a good-faith error in judgment. Thus, the ALJ concluded that the employee concealed her work and wages from the department. The ALJ considered that, in addition to the weeks covered by the department's initial determination, there were other weeks claimed by the employee in which she correctly reported that she had worked and, therefore, demonstrated an ability to understand the question that asked about work. The ALJ also considered that the employee did not seek any help from the department in filing her weekly claims. Based on the evidence in the record, the commission concludes otherwise.

There is very little evidence in the record concerning the employee's familiarity with the unemployment insurance program. It appears that the employee initiated a claim for benefits for the first time in April 2014. The employee's first several claim certifications are not in the record. However, the UCB-23 forms completed and returned by the employer show that the claims filed by the employee for those weeks were not without error. During the time period at issue, beginning with week 19 of 2014 and ending with week 36 of 2014, the employee completed her claim certifications correctly twice (for weeks 23 and 25 of 2014), because she had the assistance of department personnel.

The employee testified credibly that she did not understand the department's multi-part question, "During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?" and, consequently, did not answer it in the manner the department expected. She did not receive sick pay, bonus pay, or commission. The employee, as a non-native English speaker, missed the "did you work" part of the multi-part question. It is a common mistake, one long acknowledged by the department. The employee did not intend to mislead or defraud the department and, therefore, did not conceal her work and wages from the department on her weekly claims.

Because the employee did not conceal work performed and wages earned in weeks for weeks 19 through 22 and 26 through 36 of 2014, she is entitled to partial benefits for those weeks, pursuant to Wis. Stat. § 108.05(3), if otherwise eligible.(3)

There is no evidence in this record concerning the employee's weekly benefit rate or the amount of benefits she received in error for the weeks at issue. Consequently, the issue concerning the employee's entitlement to benefits, if any, and overpayment will be remanded to the department.

The commission therefore finds that, in weeks 19 through 22 and 26 through 36 of 2014, the employee worked and earned wages as reflected in the table above, but she 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).

The commission further finds that the employee is entitled to partial benefits, pursuant to Wis. Stat. § 108.05(3)(c), for weeks 19 through 22 and 26 through 36 of 2014, if otherwise eligible.

The commission further finds that the employee's failure to report work and wages on her weekly claim certifications for weeks 19 through 22 and 26 through 36 of 2014, while not fraudulent, prevents waiver of recovery of the overpayment, under Wis. Stat. § 108.22(8)(c), because the overpayment was not due to departmental error. The employee must repay to the department any overpayment, the calculation of which is remanded to the department.

The commission further finds that there is no overpayment concealment penalty to impose under Wis. Stat. § 108.04(11)(bh) and no period of ineligibility to impose under § 108.04(11)(be) and (bm).

The appeal tribunal decisions are modified to reflect the above findings of fact and conclusions of law and, as modified, are affirmed in part and reversed in part. Accordingly, the employee is entitled to partial unemployment benefits for weeks 19 through 22 and 26 through 36 of 2014, if otherwise eligible. As a result of this decision, the employee is required to repay the benefits she received in error, once calculated. Calculation of the overpayment amount is remanded to the department. There is no overpayment concealment penalty, and the employee's future benefit amount shall not be reduced.

Dated and mailed April 16, 2015

daboji_urr . doc : 152 : BR 330

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: Before reversing the appeal tribunal decisions, the commission asked the ALJ for his personal impressions of the witnesses' testimony that factored into his decisions. The ALJ had no demeanor impressions to impart to the commission.

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(1)( Back ) Hollett v. Shaffer, supra.

(2)( Back ) See, e.g., Hollett v. Shaffer, supra; In re Scott Lynch, UI Dec. Hearing No. 10404409AP (LIRC Mar. 11, 2011); In re Joseph Hein, Jr., UI Dec. Hearing No. 00605374MW (LIRC Dec. 13, 2001).

(3)( Back ) It appears that there is or was an issue concerning the employee's eligibility for unemployment insurance benefits due to school attendance. 

uploaded 2015/07/16