STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
SHIRLEY GADZINSKI, Employe
THOMSON NEWSPAPERS INC, Employer
UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00401683AP
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 makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The employe was laid off from her job of nine and a half years on April 19, 2000 (week 17). She initiated a benefit claim on April 24, 2000 (week 18).
The employe, whose last claim for benefits was filed in approximately 1963, indicated that she was unaware she needed to initiate her claim in week 17. The employe testified that she worked in the mailroom, but that there was no UI benefits poster in the mailroom. She indicated that she was unaware if there was a poster in the lunchroom, as she almost never went to the lunchroom. Indeed, the employe testified that in her nearly ten years of employment, she only went to the second floor, where the lunchroom was located, on approximately half a dozen occasions. Although given notice of the hearing, the employer chose not to appear, and no evidence was adduced on its behalf.
The issue to be decided is whether the employe's failure to provide timely notification to the department concerning her unemployment in week 17 was due to any exceptional circumstance which would justify a waiver of the notice requirement.
The administrative rules provide for a waiver of the notification requirement if exceptional circumstances exist. An exceptional circumstance exists if the employe was not aware of the duty to notify the department of her intent to initiate a claim and her most recent employer failed to post or maintain a notice as to claiming benefits. Wis. Admin. Code § DWD 129.01(4)(c). It is the employer's obligation to post UI posters at suitable points where all employes will readily see them. See Wis. Admin. Code § DWD 120.01.
The employe testified that she was unaware of the notification requirement and, further, that there was no UI poster in her work area. The employe stated that she was not aware if there was a poster in the lunchroom, as she rarely, if ever, frequented that area. Although the appeal tribunal found that it is "possible" the employer had a UI poster in the lunchroom and that the employe was negligent in not investigating her potential eligibility for benefits, the commission is unable to conclude that the employe was negligent in failing to look for a poster which may or may not have existed and about which she was unaware. (1)
The commission therefore finds that in week 17 of 2000, the employe failed to initiate a benefit claim within the meaning of Wis. Stat. § 108.08(1) and Wis. Admin. Code ch. DWD 129, but that the reason for the failure constituted an exceptional circumstance so as to permit a waiver of the notification requirement, within the meaning of that section and chapter.
The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits in week 17 of 2000, provided she is otherwise qualified.
Dated and mailed September 7, 2000
gadzish.urr : 164 : 5 CP 360
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon a differing assessment of witness credibility, but is as a matter of law.
PAMELA I. ANDERSON, COMMISSIONER (dissenting):
I am unable to agree with result reached by the majority herein and I dissent. The employe testified "I filed my claim on 4/24. I filled out the handwritten questionnaire from the department after I requested that my claim that the claim be backdated to the week before. I also indicated that my employer didn't tell me I had to call in." In the fact finding report the employe wrote " I was not aware of the fact that I had to call it in that week because I was still employed on 04/19/2000 which was my last day of employment. My employer did not inform us that we had to call in the week we got laid off and so therefore, I thought that calling it in on 04/24/2000 would be all right."
The employe did not testifiy that there was no poster up at the employer's. She testified that there was no poster in the mailroom. The employe was asked if there was a poster near the lunchroom and she replied that she had been there about 6 times in 9 « years. DWD section 120.01 says "Each covered employer shall keep his or her employers informed as to ch. 108, Stats., by posting appropriate notice- posters supplied to the employer by the employment security division. Such notices shall be permanently posted by each employer at suitable points (on bulletin boards, near time clocks, etc., where all employes will readily see them) in each of the employer's work-places and establishments in Wisconsin."
The employe in this case did not use the lunchroom but I do not believe that the employer was required to place a poster in the mailroom because she did not use the lunchroom. There are some employers such as General Motors where they have multiple buildings where it is necessary for the employer to post more than one notice but generally if a poster is on the official employer bulletin board, by the time clock or lunchroom that is sufficient to be where employes will readily see the poster.
I agree with the administrative law judge that the employe did not meet the exceptional circumstances section for her late filing. I would affirm.
Pamela I. Anderson, Commissioner
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(1)( Back ) The dissenting commissioner indicates that a poster on an official employer bulletin board near a time clock or lunchroom will generally be sufficient. However, that argument assumes that there was a UI poster on an "official employer bulletin board" near a time clock or lunchroom when, in fact, no evidence were presented to suggest this was the case.