Wis.LIRC UC Decision: Schmitt, Amber - August 31, 2017 - SW 845 – PC 714.02 – PC 714.07- VL 1007.01 – The ER failed to establish that the EE quit her work or that she refused an offer of suitable work. Although the ER's log of employment-related matters was admissible under the “business records” exception as a record of regularly conducted activity, the exception did not apply to the notes of statements allegedly made by the ER representative to the EE, or vice versa. The EE did not appear at the hearing. The statements contained in the claimant statement (UCB-157) were also hearsay. No issue may be decided solely on hearsay evidence unless the hearsay was admissible under Wis. Stat. ch. 908.

State of Wisconsin

Labor and Industry Review Commission


Amber N. Schmitt	Unemployment Insurance Decision[1]
Employee

Maxim Healthcare Services Inc.
Employer	Dated and Mailed:

Hearing No.17003132MW	August 31, 2017
Hearing No.17003132MW

The decision of the administrative law judge is affirmed, and the findings of fact and conclusions of law are modified to conform to the findings of fact and conclusions of law below. Accordingly, the employee is eligible for benefits, if otherwise qualified.

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 began working for the employer in February 2017.

2. The employer maintains a log of employment-related matters involving its temporary workers.

3. The log entry for April 10, 2017, states “Talked to Amber and she is interested in Aurora.”

4. The employee did not refuse a bona fide offer of suitable work in week 15 of 2017.

5.The employee did not voluntarily terminate her work for the employer in week 15 of 2017.

Memorandum Opinion

The employer asserted at the hearing that the employee was offered work in week 15 of 2017. The employer presented as evidence a log purporting to document conversations between the employee and an employer representative. The employer's witness at the hearing asserted that, based on his conversations with the manager of business operations, the employee attended an orientation at Aurora but then resigned from the assignment.

The log submitted by the employer, and the employer's testimony regarding his conversations with the manager of business operations, are hearsay. Hearsay evidence is admissible in an unemployment insurance hearing if it has reasonable probative value, but no issue may be decided solely on hearsay evidence unless the hearsay is admissible under Wis. Stat. ch. 908.^{^[2]} The employer's log is admissible under the “business records” exception as a record of regularly conducted activity.^{^[3]} However, the exception does not apply to notes of statements allegedly made by the employer's representative to the employee or by the employee to the employer's representative.^{^[4]} Further, the log entry of April 10, 2017, does not even establish that an offer of work was made to the employee.

The ALJ found that the employee attended an orientation on April 13, 2017. That finding is apparently based on Exhibit 2, a UI Claim Investigation—Claimant Statement (UCB-157). That document is also hearsay.[5] It is a document purporting to be a department adjudicator's summary of statements made to the adjudicator by the employee. The employee did not appear at the hearing to verify the accuracy of the statements attributed to her.

The employer established very little at the hearing beyond the fact that the employee began working for the employer in February 2017. It did not provide non-hearsay testimony regarding her last day of work or how her last assignment ended. It was not established that there was even an ongoing employee-employer relationship as of week 15 of 2017. The employer failed to establish through non-hearsay testimony that the employee quit her work in week 15 of 2017 or that she refused an offer of suitable work in that week.

The employer submits additional documentation with its petition. The commission's rules provide that its review is based on the record of the case, including the evidence previously submitted at the hearing before an appeal tribunal.^{^[6]} The commission cannot consider factual assertions made in a petition or documents submitted with a petition that were not also made or submitted at the hearing.^{^[7]} Therefore, anything outside the record in this case has not been considered and will not be addressed.

cc:	Maxim Healthcare Services

[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.

[4] Marshbanks v. Cornwell Pers. Assocs. Ltd., UI Dec. Hearing No. 06600765MW (LIRC Apr. 21, 2006), and cases cited therein.

[5] Rieck v. Network Field Servs. Inc., UI Dec. Hearing No. 00001089LX (LIRC July 28, 2000).

[7] Goetsch v. DWD, 2002 WI App 128, ¶ 13, 254 Wis. 2d 807, 646 N.W.2d 389 (commission is limited to the record before the ALJ).