State of Wisconsin
Labor and Industry
Review Commission
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Gerardo Covarrubio Martinez |
Unemployment
Insurance Decision[1] |
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Employee |
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& Lawn Care Inc. |
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Employer |
Dated and
Mailed: |
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Hearing
Nos.16400580AP, 16400581AP, and 16400583AP
through 16400588AP[2] |
June 28, 2017 |
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The decisions of the administrative law judge are affirmed in part and reversed in part, and the findings of
fact and conclusions of law are modified
to conform to the findings of fact and conclusions of law set forth herein. Accordingly,
the employee is eligible for full or partial benefits for the weeks at issue,
if otherwise qualified. The employee is required to repay benefits totaling $441
to the Unemployment Trust Fund. The employee is not required to repay any federal
additional compensation (FAC). There are no concealment penalties.
Procedural Posture
This matter is before the commission to consider the employee's
eligibility for unemployment insurance benefits in 2010, 2011, 2012, 2013, and
2014. The Bureau of Benefits in the Unemployment Insurance Division of the
Department of Workforce Development (department) issued nine initial
determinations, finding that the employee concealed work and wages when filing
claims for unemployment insurance benefits in those years. The employee
requested a de novo hearing before an
appeal tribunal.
An administrative law judge (ALJ) for the department held hearings on
July 13, July 14, and October 11, 2016. The ALJ issued one appeal tribunal
decision, reversing the department's initial determination and finding no
concealment. The ALJ issued eight appeal tribunal decisions, affirming the
department's initial determinations, amending the weeks of issue, and finding
concealment. The employee was required to repay benefits and to pay concealment
penalties to the department. The employee petitioned for commission review of
the eight adverse appeal tribunal decisions.
The commission has considered the employee's petition, the positions of
the parties, and the briefs submitted, and the commission has conducted an
independent and thorough review of the evidence submitted at the hearings in
this matter. Based on its review, the commission makes the following:
Findings of Fact and Conclusions of Law
1. The employee, Gerardo Covarrubio Martinez, has worked as a seasonal laborer for
the employer, Springhetti's Landscaping and Lawn
Care, Inc., since 2006.
2. The employee works as a landscaper's
helper during the spring, summer, and fall. Beginning in 2010, he was sometimes
called in to plow snow for the employer during the off season.
3. The employee earned $12.50
per hour through week 13 of 2010, then $13.50 per hour through week 10 of 2012,
and then $14.50 per hour through week 8 of 2014.
4. The employee is originally
from Mexico, where he attended school through the 6th grade. In
2004, when he was 17 years old, the employee moved to the United States. He attended
an American high school for less than two years. He did not graduate.
5. The employee did not speak
English when he moved to the United States in 2004.
6. The employee began filing for
unemployment insurance benefits in 2010, when someone told him that he was able
to file for benefits after being laid off from his seasonal job for the winter.
The employee was not aware of the unemployment insurance program and had not
filed for benefits prior to working for Springhetti's.
7. The employee does not specifically
recall who told him that he could apply for unemployment insurance benefits. The
employee was not told how to file his claims or how to answer specific
questions, but he was told to save the hours that he worked in the winter for
payment in the spring.
8. When the employee plowed snow
for Springhetti's, he tracked his hours and submitted
those hours to Springhetti's for payment after he
returned to his landscaping work in the spring.
9. The employee had a company credit card that he used in the winter if the employer's snowplowing
trucks needed gas.
10. The employee filed claims for
unemployment insurance benefits for weeks 2, 3, 6 through 13, and 50 through 52
of 2010 and week 1 of 2011.[3]
11. The employee filed claims for
unemployment insurance benefits for weeks 2 through 11, 13, 14, 16, 17, 49, 52
and 53 of 2011.[4]
12. The employee filed claims for
unemployment insurance benefits for weeks 1 through 4 and 6 through 10 of 2012.[5]
13. The employee filed claims for
unemployment insurance benefits for weeks 50 through 52 of 2012 and weeks 1 and
3 through 15 of 2013.[6]
14. The employee filed claims for unemployment
insurance benefits for weeks 49 through 52 of 2013 and week 1 of 2014.[7]
15. The employee filed claims for
unemployment insurance benefits for weeks 2 through 8 of 2014.[8]
16. The employee filed his claims
in Spanish, usually by telephone.
17. The
employee uses a Spanish translator when dealing with issues relating to
unemployment insurance benefits.
18. The employee did not report the
hours he worked plowing snow for the employer when he filed his weekly claim
certifications prior to week 9 of 2014, because he had been told to save his
hours and he did not know that he had to report them to the department even if
he would not get paid for the hours until spring.
19. In
the winter, the employee did not report any hours he may have worked to Springhetti's, and he was never paid by Springhetti's
during the winter.
20. When asked as part of his
weekly claims if he had worked in the week, the employee answered “No” even if
he had performed some work plowing snow for Springhetti's,
because, as instructed, he was saving his hours.
21. The employee was not aware that the
unemployment insurance law does not permit claimants to “save” hours.
22. Department records show that a
Handbook for Claimants was mailed to
the employee in January of 2010, 2011, and 2013. At least one of those
handbooks was a Spanish version, which the employee received. The employee did
not look through the booklets. None of them specifically addresses the issue of
“saving” or “banking” hours.
23. In February 2014, the
department began investigating the employer for orchestrating an aiding and
abetting scheme. The employee was one of several workers the department
believed were, in collusion with the employer, “banking” hours while collecting
unemployment insurance benefits and concealing work and wages in order to
receive more benefits than those for which they were eligible.
24. In February 2016, the
department issued nine determinations finding that
the employee concealed work and wages when filing claims for 69 weeks in 2010
through 2014.
25. The
employee did not dispute that he sometimes plowed snow for Springhetti's.
Although he could not recall any particular dates on which he plowed snow, the
employee provided good faith estimates, based on charges to his company credit
card and actual snowfall totals, of the amount of time he could have spent plowing
snow for Springhetti's in 2010, 2011, 2012, 2013, and
2014.
26. The employee's estimates of
work performed and wages earned during the winter months are the best evidence
of work and wages for the weeks at issue.
27. The commission does not draw an
inference from the circumstances that
the employee intentionally provided incorrect information to the department to
obtain benefits for which he was not eligible and to which he was not entitled.
28. The employee did not understand
the unemployment insurance system well enough to form the intent to cheat it.
29. The employee had little pecuniary
reason to deliberately withhold work and wage information from the department,
because he seldom worked enough hours in the winter to earn more than the $30 weekly
offset included in the partial benefits formula.
30. The employee did not intend to mislead
or defraud the department.
31. The employee worked and earned
wages in a fraction of the weeks at issue and did not conceal, as that term is
defined in Wis. Stat. § 108.04(11)(g), that work and those
wages from the department when filing benefit claims for those weeks.
32. The employee is entitled to
benefits for the weeks at issue as
set forth in the tables below. Benefits for weeks in which the employee worked
and earned wages are calculated
pursuant to Wis. Stat. § 108.05(3).[9]
For Hearing No. 16400580AP:
|
Week of issue |
Hrs:Min worked |
Wages earned ($12.50/hour) |
Benefits paid |
Benefits due |
Erroneous
payment |
|
2/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
3/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
6/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
7/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
8/10 |
2:00 |
$25.00 |
$328 + $25 FAC |
$328 |
$0 |
|
9/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
10/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
11/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
12/10 |
2:00 |
$25.00 |
$328 + $25 FAC |
$328 |
$0 |
|
13/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
50/10 |
0:00 |
$0 |
$328 + $25 FAC |
$328 |
$0 |
|
51/10 |
0:00 |
$0 |
$328 |
$328 |
$0 |
|
52/10 |
0:00 |
$0 |
$328 |
$328 |
$0 |
|
1/11 |
0:00 |
$0 |
$328 |
$328 |
$0 |
|
Total |
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|
$0 |
For Hearing No. 16400581AP:
|
Week of issue |
Hrs:Min worked |
Wages earned ($13.50/hour) |
Benefits paid |
Benefits due |
Erroneous
payment |
|
2/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
3/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
4/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
5/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
6/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
7/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
8/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
9/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
10/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
11/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
13/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
14/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
16/11 |
2:00 |
$27.00 |
$341 |
$341 |
$0 |
|
17/11 |
6:00 |
$81.00 |
$341 |
$306 |
$35 |
|
49/11 |
2:00 |
$27.00 |
$341 |
$341 |
$0 |
|
50/11 |
0:00 |
$0 |
$341 |
$341 |
$0 |
|
51/11 |
0:00 |
$0 |
$341 |
$61 |
$280* |
|
52/11 |
0:00 |
$0 |
$0 |
$0 |
$0 |
|
53/11 |
0:00 |
$0 |
$0 |
$0 |
$0 |
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Total |
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$315 |
* As a result of the change in wage amounts reported to the department, the
employee's benefits now exhaust in week 51 of 2011. This results in an
erroneous payment of $280 for that week. Although weeks 50 and 51 of 2011 are
not weeks at issue, they are included in the chart to reflect the payments made
to the employee for those weeks and to explain the erroneous payment
calculation.
For Hearing No. 16400582AP:
|
Week of issue |
Hrs:Min worked |
Wages earned ($13.50/hour) |
Benefits paid |
Benefits due |
Erroneous
payment |
|
1/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
2/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
3/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
4/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
6/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
7/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
8/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
9/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
Total |
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|
|
|
$0 |
For Hearing No. 16400584AP:
|
Week of issue |
Hrs:Min worked |
Wages earned ($14.50/hour) |
Benefits paid |
Benefits due |
Erroneous
payment |
|
50/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
51/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
52/12 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
1/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
2/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
3/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
5/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
6/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
7/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
8/13 |
7:00 |
$101.50 |
$363 |
$315 |
$48 |
|
9/13 |
2:00 |
$29.00 |
$363 |
$363 |
$0 |
|
10/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
11/13 |
2:00 |
$29.00 |
$363 |
$363 |
$0 |
|
12/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
13/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
14/13 |
2:00 |
$29.00 |
$363 |
$363 |
$0 |
|
15/13 |
4:00 |
$58.00 |
$363 |
$344 |
$19 |
|
Total |
|
|
|
|
$67 |
For Hearing No. 16400585AP:
|
Week of issue |
Hrs:Min worked |
Wages earned ($14.50/hour) |
Benefits paid |
Benefits due |
Erroneous
payment |
|
49/13 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
50/13 |
3:00 |
$43.50 |
$363 |
$353 |
$10 |
|
51/13 |
3:00 |
$43.50 |
$363 |
$353 |
$10 |
|
52/13 |
1:00 |
$14.50 |
$363 |
$363 |
$0 |
|
1/14 |
0:00 |
$0.00 |
$363 |
$363 |
$0 |
|
Total |
|
|
|
|
$20 |
For
Hearing No. 16400587AP:
|
Week of issue |
Hrs:Min worked |
Wages earned ($14.50/hour) |
Benefits paid |
Benefits due |
Erroneous payment |
|
2/14 |
0:00 |
$0.00 |
$370 |
$370 |
$0 |
|
3/14 |
1:00 |
$14.50 |
$370 |
$370 |
$0 |
|
4/14 |
2:00 |
$29.00 |
$370 |
$370 |
$0 |
|
5/14 |
6:00 |
$87.00 |
$370 |
$331 |
$39 |
|
6/14 |
2:00 |
$29.00 |
$370 |
$370 |
$0 |
|
7/14 |
3:00 |
$43.50 |
$0 |
$360 |
* |
|
8/14 |
3:00 |
$43.50 |
$0 |
$360 |
* |
|
Total |
|
|
|
|
$39 |
* The department did not pay any benefits during its two-year
investigation.
33. The employee was erroneously
paid benefits totaling $441, as set forth above.
34. The erroneously-paid benefits
are considered an overpayment (a debt the employee must repay), because the
benefits were not paid as a result of departmental error, within the meaning of
Wis. Stat. § 108.02(10e). The department paid benefits based on the information
provided by the employee, which was incorrect.
35. The employee's failure to
report work and wages on his weekly claim certifications for weeks 8 and 12 of 2010; weeks 16, 17, and 49 of 2011;
8, 9, 11, 14, 15, and 50 through 52 of 2013; and weeks 3 through 8 of 2014 was not fraudulent, but it nonetheless prevents
waiver of recovery of the erroneously-paid benefits under Wis. Stat. § 108.22(8)(c).
36. Because the employee did not
conceal work or wages, within
the meaning of Wis. Stat. § 108.04(11)(b), on his claim certifications for the weeks at
issue, there is no overpayment of federal additional compensation (FAC), there
are no overpayment concealment penalties, within the meaning of Wis. Stat.
§ 108.04(11)(bh), and there are no forfeitures or
benefit amount reductions, within the meaning of Wis. Stat. § 108.04(11)(be) and (bm).[10]
The employee petitioned for commission review of eight adverse appeal
tribunal decisions. The ALJ found that, to obtain unemployment insurance
benefits to which he knew he was not entitled, the employee concealed his work
and wages from the department in weeks 8
and 12 of 2010; weeks 16, 17, and 49 of 2011; 8, 9, 11, 14, 15, and 50 through
52 of 2013; and weeks 3 through 8 of 2014. In his petition, the employee
contended that he did not intend to mislead or defraud the department. Instead,
the employee argued that he did as he was told to do – save his hours in the
winter until he returned to his seasonal landscaping job in the spring. The
commission is satisfied, based on the overall record in this matter, that the
employee did not conceal work performed and wages earned to obtain more
benefits than those for which he was lawfully eligible.
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.”[11]
The burden to establish that a claimant concealed information is on the
department. The Wisconsin Supreme Court has required that concealment, as a
form of fraud, be proven by clear, satisfactory, and convincing evidence.[12]
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. The commission does not draw an inference of fraudulent
intent in every case in which a claimant provided incorrect information when
filing a benefit claim.[13]
Concealment is not found, for example, where a claimant makes an honest
mistake, misinterprets information received from the department, or reasonably misunderstands
his or her obligations and benefit rights under the unemployment insurance law.
Here, there is no direct evidence of concealment. The employee
acknowledged that he did not report
his snowplowing hours to the department “because he was saving them,” but he denied that he did it so he would receive more benefits than he otherwise would.
The indirect evidence in the record,
when viewed as a whole, compels the conclusion that the employee did not report
his snowplowing hours because he misunderstood his obligations as a claimant
for unemployment insurance benefits. The employee speaks and reads Spanish and has had very little formal
education. He began working for the employer, a small, family-owned business,[14]
as a landscaper's helper in 2006, just two years after coming to the United
States from Mexico at the age of 17. He did not know that the unemployment
insurance program existed until someone told him in or about 2010 that he could
call “the number” and “request for the unemployment since the job during the
winter have finished.” The employee was told that he should not report the hours
he worked in the winter until spring. Accordingly, the employee did not report
his winter hours to the employer for payment until he returned to his regular
position with the employer in the spring and did not report his winter hours to
the department. The employee did not know enough to question the propriety of what
he was told.
The employee's understanding of the unemployment insurance system was
very simple. In the spring, summer, and fall, he worked his regular job as a
seasonal landscaper's helper. After someone informed him of the existence of
unemployment insurance, the employee called “the number” after being laid off
for the winter and requested benefits. He worked in the winter if Springhetti's needed him. He “did whatever they wishes (sic). The
snow would fall, they would call [him], and [he] would do the work.” The
employee stopped requesting benefits each spring when he was back working at his
regular job as a landscaper's helper.
The following exchanges between the attorney for the department and the
employee are illustrative of the employee's level of understanding and state of
mind at the time he filed his weekly benefit claims:
Q: Did you think if you said yes to the question, did you work, that you would not get your benefits that week?
A: Don't know. I don't remember.
Q: Did you answer no to the question, did you
work, because you did not want the department to know you worked?
A: No. No, the reason why I answered no that I did not work is because I
was saving my hours.
Q: When you were filing your weekly claims from 2010 through 2014, did
you know that if you answered the question, did you work, yes that you would
then be asked an additional question about how many hours you worked?
A: Didn't know.
Q: Is that because you always said no to the question, did you work?
A: Yes, it is.
…
Q: Even in weeks where you did work?
A: Yes, it is. Yes.
Q: Did you not report your hours you worked to the department because
you weren't going to get paid for them until the spring?
A: Yes, it is. Yes.
Q: Did you think that the department would consider your wages if you
reported them to determine whether you could get your benefits?
A: I didn't think on that.
Q: So, you understood that the hours you worked affected, uh, whether
you could get unemployment insurance, is that right?
A: I did not understand.
The employee was not aware that he was doing anything wrong by saving the
few hours he worked plowing snow in the winter until the spring. He did not
look through the various versions of the Handbook
for Claimants that had been sent to him, but he had no reason to believe
that he needed to. The commission does not condone the employee's failure to
read carefully through the Handbook for
Claimants. However, at the time the booklets were sent to the employee, claimants
were instructed to read the handbook “in order to understand and protect” their
rights. The employee was receiving benefits in the winter, just as he had been
told he could, and did not appreciate the need to closely examine the
handbook's provisions. Moreover, even if he had read the handbook carefully, he
would not have found a section addressing the issue of “saving” hours. It was
not until early 2014, when the department began its investigation into the
manner in which employees at Springhetti's reported
their work hours, did the employee start “to know more about unemployment.”
Before reversing the appeal tribunal decisions, the commission consulted
with the ALJ concerning the demeanor of the witnesses. The ALJ indicated that
there were no particular demeanor impressions that she could recall which
factored into her decisions. The commission credits the employee's testimony
that he followed the instructions he received that he should “save” his winter
hours and did not realize that he was doing anything wrong in the process. The
employee made an innocent mistake due to inexperience and unfamiliarity with
the unemployment insurance program and a lack of understanding.
The department argued that the employee admitted that, when he was asked
each week if he worked, he understood the question that was asked of him and
that the question is straightforward and not easily susceptible to
misinterpretation. However, the employee in this case believed that, for him, the
proper answer to the question was “No,” because, just as he was told to do, he
was saving his hours and not getting paid until the spring. The employee was
not aware that he was answering the question improperly.
The department further argued that the employee understood the reason
the department asked him if he worked each week was because the answer he
provided could affect his benefits. In support of its argument, the department
cited the employee's testimony from the second day of the hearing.[15]
But, the employee's answer to the question about whether the number of hours he
worked could affect his unemployment benefits – yes – was consistent with his
simple understanding of the unemployment insurance system: when he was not working
his regular job in the winter, he could receive unemployment benefits; when he
was working his regular job in the spring, summer, and fall, he could not.[16]
The department also argued that the employee in this case was similar to
the claimant in McGee v. Crossmark,
Inc., UI Dec. Hearing Nos. 14609275MW through 14609278MW (LIRC May 28,
2015). That is not so. Ms. McGee knew from past encounters with the department
that she needed to report all hours worked and all wages earned, and she had been
previously found to have concealed work and wages. Despite that knowledge and
experience, Ms. McGee chose not to report any wages she earned from a part-time
employer. The commission therefore found that Ms. McGee's failure to report
work and wages a second time was not the result of an honest mistake, a
misinterpretation of information received, or a good faith misunderstanding of
her obligations. The knowledge and experience of the employee in this case are
not in any way comparable to Ms. McGee's. The employee was a first-time filer,
and he filed his claims the same way from 2010 through early 2014. During that
time, he was never informed that he was filing his claims incorrectly. In
addition, the commission found the employee's testimony credible. The
commission did not find Ms. McGee's testimony credible. Finally, unlike Ms.
McGee, the employee did not seek to blame his incorrect answers to the “Did you
work?” question on his employer or anyone else. The employee did not discuss
with anyone how to answer questions asked of him during the claims process but
answered the “Did you work?” question in the negative because he was saving his
hours, just as he had been told to do. The employee did not know or suspect
that he was doing something wrong and was not trying to get more benefits than
he was legally eligible to receive.
Another case cited by the department to support its argument is Atilano
v. SBM Site Services, Inc., UI Dec. Hearing Nos. 16000036MD and
16000037MD (LIRC Mar. 11, 2016). This case is also distinguishable from the
case at hand. Mr. Atilano, like the employee, was
from Mexico and had limited formal education. However, unlike the employee, Mr.
Atilano continued to file after he returned to
full-time employment and reported that he did not work. Unlike the employee,
Mr. Atilano was not following instructions to “save”
his hours, was not working only a few hours per week, if at all, and was not having
to wait to be paid for an indeterminate amount of time. Furthermore, Mr. Atilano could have easily learned of the state's waiting week
had he read the Handbook for Claimants,
whereas the handbooks sent to the employee do not clearly address the “saving”
of hours. Lastly, an inference of concealment was drawn in Mr. Atilano's case, and he did not rebut the inference through
affirmative proof of good faith. In the employee's case, based on the evidence
in the record an inference of concealment was not drawn.
In his brief, the employee raised several areas of concern. First, the
employee questioned the propriety of the department's decision to issue the
initial determinations in this matter concerning work and wages without naming
and providing notice to the employer. Although the department's failure to name
the employer is unusual, the issue is moot. The hearing office provided the employer
with notice of the proceedings. The fundamental
requirement of procedural due process is the opportunity to be
heard at a meaningful time and in a meaningful manner.[17] Yet,
the commission “cannot condone a system which does not inform a party in interest
of proceedings affecting that interest….”[18]
The second issue raised by the employee concerns the propriety of the
ALJ's decision to grant a protective order preventing pages of the department's
Disputed Claims Manual from being disclosed to the public. As set forth in the
Wisconsin Administrative Code, an ALJ has the authority to issue a protective
order to prohibit parties and their representatives from disclosing any
evidence and exhibits listed as confidential in the protective order if the
interests of justice so require.[19] The
ALJ accepted the department's representation that it was in the interests of
justice to issue a protective order because the evidence and exhibits at issue
were confidential.
The commission reached its decision in this matter based on its
determinations of credibility and intent. The confidentiality question does not
need to be resolved in order to reach a decision, and the commission declines
to take up the question at this time. However, the commission notes that there
are federal regulations that address the confidentiality and disclosure of
unemployment insurance information.[20] Those regulations provide
that “information about State UC law (and applicable Federal law) provisions,
rules, regulations, and interpretations thereof, including statements about
general policy and interpretations of general applicability” is public domain
information[21] and
not subject to confidentiality.[22] The
federal confidentiality and disclosure requirements apply to states and state
agencies.[23]
The third issue raised by the employee concerns the quality of the
translation services provided by the hearing office. The employee argued that
two in-person translators were needed in this case given the length of the
hearing, the number of documents involved, and the complexity of the issues.
The hearing office declined to provide in-person translators and relied on
outsourced language line services. Over the course of the three-day hearing, several
different individuals provided translation services.
Title VI of the Civil Rights Act of 1964 prohibits discrimination on the
basis of race, color, and national origin under any program or activity
receiving federal financial assistance. Relevant case law has interpreted
“national origin” to include ensuring that individuals with limited English
proficiency (LEP) have meaningful access to programs and activities.[24]
The federal government allows state unemployment insurance agencies to provide
oral interpretation either in-person or via telephone interpretation service.[25]
Only the use of free, web-based translation services (machine translation
software) is not permitted, because it is not sufficient to ensure that the
translation is appropriate and conveys the same meaning as the English version.[26]
State unemployment insurance agencies are encouraged to “incorporate, into LEP
plans, policies and procedures, methods for ensuring the quality of
translations and interpretations. This may include, but is not limited to,
using competent bilingual staff to ensure the accuracy of in-house or
vendor-provided translations and interpretations.”[27]
There is, however, no requirement that state agencies do so.
While in-person translations and interpretations are used in formal
courts of law and may be preferred by parties, many of the rules that apply to
courts of law are inapplicable to administrative hearings. Unemployment
insurance appeal hearings are intended to be simple, speedy, and inexpensive.[28]
Finally, the employee objected to the appeal tribunal's ruling that
evidence concerning the employee's health after the first two days of the
hearing was irrelevant to the concealment allegations dating from 2010 through
2014. The commission agrees with the appeal tribunal's ruling on this point.
While the length and significance of the hearing were undoubtedly stressful for
the employee, the focus of the hearing was his intent and knowledge of the
program and his obligations as a claimant at the time he filed the weekly
claims at issue.
|
cc: |
Attorney Kristin Shimabuku Gill & Gill, SC |
[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] The employer was not a named party to
Hearing Nos. 16400583AP, 16400586AP, and 16400588AP. The appeal tribunal decision in
Hearing No. 16400582AP was not adverse to the employee and is not before the
commission.
[3] Subject of Hearing No. 16400580AP.
[4] Subject of Hearing No.
16400581AP.
[5] Subject of Hearing No.
16400582AP.
[6] Subject of Hearing No.
16400584AP.
[7] Subject of Hearing No.
16400585AP.
[8] Subject of Hearing No.
16400587AP.
[9] The statute provides that, if an
eligible employee earns wages in a given week, the first $30 of the wages shall
be disregarded and the employee's applicable weekly benefit payment shall be
reduced by 67 percent of the remaining amount, except that no such employee is
eligible for benefits if the employee's benefit payment would be less than $5
for any week.
[10] The statutory penalties for concealment
found in Wis. Stat. §
108.04(11)(be), (bh) and (bm) were not the same for all weeks at issue. Because it
has been decided that the employee did not conceal work and wages while filing
claims for unemployment insurance benefits, it is not necessary to outline in
detail the precise nature and calculation of the penalties.
[11] Wis. Stat. § 108.04(11)(g)(2013-14).
Effective April 3, 2016, “conceal” means to intentionally mislead the
department by withholding or hiding information or making a false statement or
representation. See 2015 Wis. Act
334.
[12] Wangen v. Ford Motor
Co., 97 Wis. 2d 260, 299, 294 N.W.2d 437 (1980) (supreme court requires a
higher burden of proof, i.e., to a reasonable certainty by evidence that is
clear, satisfactory and convincing, in the class of cases involving fraud); Kamuchey v. Trzesniewski,
8 Wis. 2d 94, 98, 98 N.W.2d 403 (1959) (“fraud must be proven by clear and
satisfactory evidence, which requires a higher degree of proof than in ordinary
civil cases”).
[13] Wallenkamp
v. Arby's Restaurants, UI Dec. Hearing Nos. 13607281MW and 13607282MW
(LIRC May 15, 2014); aff'd, Wis. Dep't of Workforce Dev. v. Wis. Labor
and Indus. Review Comm'n, Wallenkamp, and Arby's Restaurants, No. 2015AP716, unpublished slip op (WI
App Feb. 2, 2016).
[14] See
Gussert
v. Springhetti's Landscaping & Lawn Care, Inc.,
UI Dec. Hearing Nos. 16400598AP through 16400609AP (LIRC Jan. 27, 2017).
[15] T2. 129:22-130:1 (Q: Did you understand
that the department was asking the question, did you work, because the answer
to that question could affect your unemployment benefits? A: Yes.).
[16] T2. 120:16-24 (Q: Why did you stop
filing for unemployment benefits in the first week in the spring? A: Because I started to work my regular hours in the spring.).
See, also, T2. 122:8-12 (Q: So you …
stopped filing in the spring because you started to work regular hours …? A:
Yes, yes. Yes, that's the way that it is. What happen is I started to work
daily and 40 hours.).
[17] Rhonda
R.D. v. Franklin R.D., 191 Wis. 2d 680, 701, 530 N.W.2d 34 (Ct. App. 1995)
(citing Mathews v. Eldridge, 424 U.S.
319, 333 (1976)).
[18] Griesbach
v. Seek Career/Staffing Inc., UI Dec. Hearing No. 10402551AP (LIRC Nov.
30, 2010), citing Cornwell Personnel
Associates, Ltd. v. DILHR, 92 Wis. 2d 53, 62, 284 N.W.2d 706 (Ct. App.
1979).
[19] Wis. Admin. Code § DWD 140.09(2).
[20] 20
CFR § 603 et seq.
[21] 20
CFR 603.2(c).
[22] 20
CFR 603.5(a).
[23] 20
CFR § 603.1.
[24] U.S. Dep't of Labor, Employment and
Training Admin., Unemployment Insurance Program Letter No. 02-16 (Oct. 1,
2015), p. 7.
[25] Id.,
p. 8.
[26] Id.,
p. 9.
[27] Id.,
p. 10.
[28] U.S. Dep't of Labor, Employment and
Training Admin., Unemployment Insurance Program Letter No. 26-90 (Apr. 26, 1990).