Wis.LIRC UC Decision: Schmitz, Jennifer A. - October 3, 2000 - AA 205 - Attendance at school or training course - "able and available" for 74% of suitable work despite attendance at a few classes, including during first shift - COED report not useful in case of limited class schedule

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

JENNIFER A SCHMITZ, Employe

HOLTZS SUPPER CLUB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00401309AP

The Department of Workforce Development (department) on April 11, 2000 issued an initial determination finding that the employee was available for less than 50 percent of the suitable work in her labor market beginning in week 15 of 2000. The employee was denied benefits and requested a hearing. A hearing was scheduled on May 22, 2000 before an administrative law judge (ALJ). On May 24, 2000 the ALJ issued her appeal tribunal decision (ATD), amending the department's initial determination as to the weeks of issue and, as amended, affirmed the initial determination in part and reversed it in part. The ATD found the employee ineligible for unemployment benefits in weeks 15 through 20 of 2000 but eligible for benefits beginning in week 21 of 2000, if otherwise qualified. The employee timely petitioned the Labor and Industry Review Commission (commission) for review. On July 24, 2000, the commission ordered that additional testimony be taken before an ALJ, acting on behalf of the commission, with respect to the employee's availability for benefits in weeks 15 through 20 of 2000. A labor market analyst testified at the remand hearing held on August 23, 2000. The employee also appeared.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately two and one-half years as a waitress and bartender for a supper club. In addition to that work experience, the employee performed work as an administrative assistant and receptionist. The employee's last day of work was March 31, 2000 (week 14) when the supper club she worked at closed for remodeling. Department records reflect that the employee initiated a claim for unemployment insurance benefits on April 2, 2000 (week 15).

As of week 15, 2000 the employee was more than half way through her final semester of college. She was working toward a four-year degree in economics. The employee attended classes on Tuesdays and Thursdays from 9:40 a.m. to 11:10 a.m. and on Mondays from 6:00 p.m. to 9:20 p.m. during her final semester of college. After the employee's employment ended, the employee no longer looked for waitressing, bartending or other low skilled work. Instead she began to look for work in more professional and technical fields. The employee graduated from college on Saturday, May 13, 2000 (week 20).

Wis. Stat. � 108.04(2)(a) requires a claimant to be able to work and available for work in order to be eligible for benefits. The Wisconsin Administrative Code implements this statute and provides that a claimant is not able and available if he or she, without good cause, restricts him or herself to less than 50 percent of the full time opportunities for suitable work in his or her labor market. The issue for review therefore is whether the employee was able to work and available for work in her labor market as of week 15 of 2000.

The employee contends that she was able to work and available for work as of week 15 despite her college class schedule. The ALJ disagreed, finding that the employee's college class schedule restricted her availability to less than 50 percent of the suitable work in her labor market. This conclusion was based in part upon the Student Availability report entered into evidence. The Student Availability report indicated that the employee's class schedule restricted her to less than 50 percent of the suitable work in her labor market during weeks 15 through 20 of 2000.

The commission ordered a remand hearing to obtain additional information regarding the employee's availability as of week 15. At that hearing, a labor market analyst appeared to offer testimony regarding the employee's availability for work as of week 15. When asked whether the employee was available for work beginning in week 15, given her class schedule, the labor market analyst testified that a "Conditions of Employment Database" (COED) report could not be generated due to the employee's limited class schedule because the system only allows the generation of a database using a very broad definition. For example, the labor market analyst testified that if a claimant restricts in any way her availability during first shift, even just one hour for one day during first shift, she is not considered available for any first shift hours. The labor market analyst explained, "That does not allow us to give any accurate description of what the person is available for. It does not give us any room to discuss other factors like the tightness of the labor market, the type of the industry the person was working in, those kinds of factors, so in this kind of situation in which the database does not return to us an accurate response." (Synopsis, at page 4).

The labor market analyst also concluded that the Student Availability report introduced at the original hearing was too broad to base an effective opinion regarding the employee's availability for the weeks in question. Finally, the labor market analyst opined that even though the employee's class schedule affected her availability for suitable work in her labor market, she was still able and available for 74 percent of suitable work in her labor market. The labor market analyst reasoned that based upon the employee's occupation categories, her class schedule, and the current labor market conditions, employment existed that would allow an employer to tailor first shift work hours around the employee's class schedule.

Without evidence to the contrary, the commission accepts the labor market analyst's conclusion that the employee was able and available for more than 50 percent of the suitable work in her labor market beginning in week 15 of 2000. The record is devoid of any evidence challenging or rebutting this expert testimony. The labor market analyst offered testimony as to why a COED report could not be generated in this instance. Furthermore, in the labor market analyst's opinion, based upon the employee's occupational categories, class schedule and current labor market conditions, the employee would be able and available for more than 50 percent of the suitable work in her labor market. The commission is satisfied, that without evidence to the contrary, the record supports the following legal conclusion.

The employee is, as of week 15 of 2000, able to work and available for suitable work, within the meaning of Wis. Stat. � 108.04(2)(a) and the Wis. Administrative Code Chapter DWD � 128.

DECISION

The appeal tribunal decision is therefore reversed. Accordingly, the employee is eligible for benefits beginning in week 15 of 2000, if otherwise qualified.

Dated and mailed October 3, 2000
schmije : 135 : 1 AA 205

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ as to witness credibility. The commission's reversal in this matter does not involve an assessment of credibility of witnesses but, is as a matter of law, based on the evidence adduced at the remand hearing. The commission notes that its decision in this case is to be interpreted narrowly. The commission recognizes that with the exception of approved training, the purpose of unemployment insurance is not to finance a worker's higher education and that school attendance presents a restriction on an employee's opportunities to secure full time work during first shift hours and that this restriction often removes the employee from his or her full time labor market resulting in ineligibility. Here, however, the record before the commission establishes that the employee's class schedule did not render her unavailable for less than 50 percent of the suitable work in her labor market for the reasons found in the decision.

PAMELA I. ANDERSON, COMMISSIONER (dissenting):

I am unable to agree with result reached by the majority herein and I dissent. The commission remanded this case for a COED report. Instead a labor market analyst testified. He rejects the COED system because he says "It does not give us any room to discuss other factors like tightness of the labor market, the type of industry the person was working in, those kinds of factors, so in this kind of situation in which the database does not return to us an adequate response." The reason the commission has rejected the information contained in Exhibit C is because it does not look at the kind of work the employee would do. COED does look at the kind of work and there are times when a student might in fact be able and available with other than 1st shift work.

The labor market analyst tells us "If you take into consideration the fact that we have an extremely tight labor supply in this market right now, that creates a situation where virtually any employer, particularly in services, sales and retail type jobs, will allow an employee to tailor the hours they work around their class schedule. Considering all the factors---the tightness of the labor market, the type of work suitable for the employee, and the Winnebago County labor market at this time-it is my opinion she would be available for over 74% of all her suitable jobs, given her class schedule." The analyst does not indicate he is relying on any surveys or other information to show that employer's will allow the employee to tailor their hours to their class schedule. The employee in this case had class on Tuesday and Thursday from 9:40 am to 11:10 am and from 6:00 pm to 9:00 pm on Mondays. That means she is physically in class for 3 hours on the first shift and she would need travel time during first shift hours to get to any job. The employee's graduation was May 13, 2000. The employee was applying for jobs that she would be qualified for based on the degree that she would soon have. At the first hearing she testified that she would have been willing to drop her day class if she had been offered a 1st shift job. She had not checked with her professor to find out if that was acceptable to not attend the classes. She also said she would have been willing to drop the class and pick something up at night but she does explain how that would have been possible more than halfway through the semester. She did not apply for waitress work or bartending work for which she had experience but instead applied for jobs she would likely get after the semester.

I am unconvinced that she was willing to drop her class or able to add a class at night. If she needed her degree I doubt she would have been willing to jeopardize it at such a late date. I find the labor market analyst's testimony incredible that 74% of employer's in her fields of interest after graduation would tailor her schedule to her class schedule especially as it comes close to the middle of 1st shift. It is possible to generate a COED report but it would not come anywhere close to the 74% of the jobs the labor market analyst believed possible.

For these reasons, I would affirm the original decision that the employee was not able and available in weeks 15-20 of 2000.

______________________________________
Pamela I. Anderson, Commissioner

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]