Wis.LIRC UC Decision: Kavalary - October 28, 1999 - AA 205 - Attendance at school or training course - controllable or not controllable restriction; PC 714.11 Evidence, Weight and Sufficency - evidence not specific to claimant's situation not adequate

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JASON P KAVALARY, Employe

FLEXI FORCE TEMPORARY SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602110MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for unemployment benefits beginning in week 11 of 1999, and until the employe is again able to work and available for suitable work.

Dated and mailed October 28, 1999
kavalja2.usd : 105 : 1 AA 205 PC 714.11

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission is sympathetic to the employe's circumstances. Nonetheless, the relevant statute and administrative code provision require the result reached in this case. The employe asserts in his petition that, because he is available for work Mondays and Fridays, and all of second and third shifts, he is available for more than 50 percent of the labor market. Of course, the vast majority of jobs occur on first shift, Monday - Friday. It is for this reason that a claimant's school attendance can have such a significant effect upon the claimant's availability for work. The employe also argues that there are only 18 hours in the week he is unavailable to work, and that his percentage of availability to work is therefore approximately 91 percent. Again, though, the vast majority of work is first shift, Monday through Friday, so this argument also fails. The employe's school attendance renders him unable to perform most first shift work, and therefore most work. As the labor market analyst testified, the employe is available for only 30 to 35 percent of the suitable work in his labor market; this of course is below the 50 percent necessary for controllable restrictions such as school attendance.

Finally, the employe argues that his school hours are controllable and can be adjusted. In this past, the commission has considered this factor when determining whether a claimant would be available for first shift work. There is no evidence in the record to suggest, though, that the employe could have transferred to evening courses, or otherwise made accommodations to allow him to work first shift. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.

NOTE: The commission had remanded this case, because it did not believe the Department of Workforce Development's general chart was competent evidence to determine a specific claimant's availability for work. The testimony by the labor market analyst at the remand hearing bore out the commission's concern. Had sales work been the only kind of work suitable to the employe, according to the labor market analyst the employe would have been available for approximately 50 percent of the full-time jobs suitable to him, even given his school attendance Tuesday - Thursday. This factor expressly shows why, from an evidentiary standpoint, individualized assessments of availability for work are necessary.

cc: CHI SERVICES ACCUSTAFF

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