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

Subject: Joseph W. Hein, Jr. v. LIRC and Acme Sales, Inc., Case 02 CV 474 (Wis. Cir. Ct., Milwaukee Co., October 25, 2002)

Digest Codes: AA 265 - Self-employment - Other work

After claiming benefits, claimant began actively engaging in self-employment with a business he had started. Following investigation, the department determined that he was not able and available for work, and he appealed. The evidence at hearing showed he was working on a basically full-time basis on his self-employment. He also had transportation responsibilities, taking a child from day care to pre-school during first-shift work hours, and transporting his wife to and from their home in Franklin to her place of employment in Pewaukee, which took about 2 hours a day during normal first-shift work hours. The employee called a vocational expert to testify as to his availability for work and the reasonableness of his work search, but the vocational expert's testimony was based to a large extent on what the employee had told him about his availability for work and the work search he had allegedly made. The ATD concluded the claimant was not available for work on the general labor market during the weeks in issue because he was too busy with his self employment and transportation responsibilities for his family to be available for other work. The ATD did not find the claimant's self-serving testimony about his availability for other work testimony to be credible. LIRC affirmed, and he appealed to circuit court.

Held: Affirmed. Credible evidence (from claimant's business partner) supported the findings about the amount of time claimant spent working on the business. The claimant himself testified that he worked 15 to 20 hours per day, Monday through Friday. The commission's conclusion on the question of availability for work is entitled to “great weight” deference. It was reasonable for the commission to conclude that the combination of the claimant's work on his business and the time taken by his transportation responsibilities left him without sufficient availability for work to be eligible for benefits.

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

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