Wis.LIRC UC Decision: Crennell, Peter - March 15, 2017 - AA 200 – AA 220 - LIRC reverses ALJ's decision, in part, finding that the CL was able to work and available for work in a number of the weeks originally denied by the ALJ. Simply because a CL watches his children during first shift hours does not, by itself, establish a withdrawal from the labor market. The CL in this case was watching his children because he did not have a job—it was not a situation where the CL did not have a job because he was watching his children. Also, Wis. Admin. Code § DWD 128.01(4)(a)5. does not require a CL to arrange for childcare to start within 24 hours to work. Instead, Wis. Admin. Code § DWD 128.01(4)(a)5. requires a CL, who is absent from his labor market for more than 48 hours, to be able to receive and respond to offers of work, and to return to the labor market within 24 hours in order to demonstrate a continuous attachment to the labor market.

State of Wisconsin

Labor and Industry Review Commission


Peter J. Crennell	Unemployment Insurance Decision[1]
Employee

The Bon-Ton Department Stores Inc.
Employer	Dated and Mailed:

Hearing Nos.16004115MD 16004101MD-16004104MD 16004092MD-16004095MD	March 15, 2017

The commission reverses the appeal tribunal decisions for hearing numbers 16004115MD, 16004101MD through 16004104MD, 16004092MD and 16004093MD. Accordingly, the employee is eligible for benefits for weeks 50 of 2009 through 44 of 2010, 45 of 2010 through 44 of 2011, 45 of 2011 through 43 of 2012, 44 of 2012 through 2 of 2013, 3 of 2013 through 43 of 2013, 52 of 2013 through 41 of 2014, 42 of 2014 through 32 of 2015.

The commission affirms in part and reverses in part the appeal tribunal decisions for hearing numbers 16004094MD and 16004095MD. Accordingly, the employee is ineligible for benefits for weeks 51 of 2015 through 3 of 2016 and weeks 4 through 8 of 2016. The employee is eligible for benefits for weeks 33 through 50 of 2015 and weeks 9 through 27 of 2016. He is required to repay the sum of $48 to the unemployment reserve fund.

By the Commission:
	/s/
	Laurie R. McCallum, Chairperson

	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the employee's eligibility for unemployment insurance benefits. An administrative law judge (ALJ) for the Unemployment Insurance Division of the Department of Workforce Development held a hearing and issued a decision. A timely petition for commission review was filed. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing. Based on its review, the commission makes the following:

Findings of Fact and Conclusions of Law

1. The employee has a Master's degree in Architecture and worked for 20 years as an architect. Prior to being discharged on October 30, 2009, the employee was working as a full-time licensed architect at an architecture firm and earning $70,000 per year. The employee's work as an architect was performed on first shift.

2. On November 1, 2009 (week 45), the employee initiated a claim for unemployment insurance benefits.

3. The week of Thanksgiving 2009 the employee began a commission sales position selling shoes for a department store. The employee's hours vary but he averages between 15-20 hours per week. The employee is allowed to work a maximum of 1000 hours per year.

4. During the weeks at issue the employee applied for full-time work. The employee focused his work search on jobs in the field of architecture and related work. The latter included sales and project management type jobs. The employee also applied for full-time work outside of his field including general office and administrative work, woodworking, and as a zoo keeper. The employee was hoping to be paid around $40,000 per year.

5. The employee did not renew his license in 2010 or keep up with continuing education requirements. The employee's license expired in 2013.

6. The employee's minor children were in daycare when the employee and his wife were both employed full time. After the employee lost his job, the employee watched his children. If the employee was offered full-time work his children would return to daycare.

7. In December 2015 the employee received a job offer to work full time as a drafts person for a residential design firm. The offer was from a lifelong friend of the employee's. The employer offered a start date of December 14, 2015 (week 51) but left up to the employee when to begin the position and to set his hours. The employee took a few weeks to try to reacquaint himself with a computer-aided drafting program used by the employer as he would be in an 8-week probationary period, and to find childcare. He arranged to begin work on January 4, 2016 and to work from 9:00 a.m. until 2:00 p.m. in order to drop his children off at school and pick them up after school. His pre-school aged child was placed in daycare. On February 22, 2016 (week 9), the employee was let go after working his 8-week probationary period. Had he passed his probationary period, the employee would have worked full time and quit his commission sales position.

8. The employee was able to work and available for work in all the weeks at issue except for weeks 51 of 2015 through week 8 of 2016.

9. The employee was erroneously paid benefits of $18 for week 52 of 2015 and $30 for week 1 of 2016.

10. The employee is required to repay the erroneously paid benefits because the benefits were paid because the employee indicated when filing his weekly claims that he was available for full-time work.

Memorandum Opinion

The commission disagrees with the ALJ's reasoning that because the employee watched his children during first shift hours he therefore had withdrawn from the labor market. This was a situation where the employee was watching his children because he did not have a job. This was not a situation where the employee did not have a job because he was watching his children. Further, while the ALJ was concerned with the employee's ability to arrange for childcare within 24 hours, there is no such requirement in the unemployment insurance law.[2]

The employee-employer relationship that began in December 2015 was unique because of the employee's lifelong friendship with the employer. The employee took advantage of the employer's willingness to be flexible regarding his starting date and schedule. The employee wanted to maintain his part time job and did not want to work full-time for the employer until he had passed his probationary period.

The commission did not consult with the ALJ before reversing the appeal tribunal decision. 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.^{^[3]} In this case, the ALJ did not hear any conflicting testimony. The employee was the only witness at the hearing.

cc:	The Bon-Ton Department Stores Inc. Aaron Bibb

[1] Appeal Rights: See the blue enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint: the Labor and Industry Review Commission, all other parties in the caption of this decision or order (the boxed section above), and the Department of Workforce Development.

Appeal rights and answers to frequently asked questions about appealing an unemployment insurance decision to circuit court are also available on the commission's website http://lirc.wisconsin.gov.

[2] Wis. Admin. Code § DWD 128.01(4)(a)(5) requires a claimant who is absent from his labor market for more than 48 hours to be able to receive and respond to offers of work and return to the labor market within 24 hours in order to demonstrate a continuous attachment to the labor market. But the claimant is not required to be able to start work within 24 hours.

[3] See Braun v. Indus. Comm'n, 36 Wis. 2d 48, 57, 153 N.W.2d 81 (1967).