Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Calderon v. LIRC, No. 17-CV-501 (Wis. Cir. Ct., Dane Co., October 3, 2017)

Digest Codes: AA 230.04, CP 350, PC 757

Calderon works annually at seasonal work in Wisconsin and resides during winter layoffs in Eagle Pass, Texas, where he files his unemployment claims. Wisconsin Stat. 108.04(2)(a) requires unemployed claimants to conduct at least four reasonable work search actions per week. Calderon's work search actions consisted of contacting employers, asking them whether they were hiring, and learning that they were not.

The department initially determined, and a department appeal tribunal subsequently held, that this was not a reasonable work search action, and the commission agreed. The commission noted that Wis. Admin. Code DWD 127.01(1) requires that a claimant's work search action be reasonably designed to secure work. This code provision also requires that a claimant conduct him or herself as would a prudent person who is out of work and seeking work, and Calderon's efforts fell short of this requirement. In addition, the department's Handbook for Claimants indicates that only contacting an employer to learn that no openings exist or that no applications are being taken is an invalid work search action.

Held:  AFFIRMED. The court gave great weight deference to the commission's interpretation of Wis. Stat. 108.04(2) and Wis. Admin. Code DWD 127.01. The court rejected Calderon's assertions that the commission had abdicated its duty to analyze Calderon's efforts and instead had completely deferred to the Handbook for Claimants. The court noted that Wis. Admin. Code DWD 127.01(2)(j) expressly authorizes the department to decide what actions, in addition to those specifically listed in DWD 127.01(2), constitute a reasonable work search action. It also noted that one way to refine what constitutes a reasonable work search action is to identify actions that do not. The court also rejected Calderon's assertion that the commission had not provided an articulated interpretation of the statute and administrative rule. The commission analyzed multiple statutory and administrative code criteria, and its conclusion was a reasonable one. Finally, the court rejected Calderon's argument that the commission's alleged reliance on the handbook was improper (as turning the handbook into an improperly-promulgated administrative rule). The court approvingly noted the commission's response that, had Calderon wished to challenge the handbook as an improperly created rule, he needed to have served notice on the Joint Committee for Review of Administrative Rules, and he did not do so.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.