Wednesday, February 10, 2016

Wisconsin Court of Appeals Unemployment Appeal Case: Applicant Did Not Conceal Facts About Wages

In somewhat of a rare case from the Wisconsin Court of Appeals, the Labor and Industry Review Commission's (LIRC) decision finding that an applicant for unemployment insurance, Nikki Wallenkamp, did not conceal wages and materials facts so a to pay a concealment fee and have future benefits redacted. 


The facts are somewhat difficult to follow, so I will bullet-point them for simplicity:

  • In 2011, Wallenkamp began filing for UI benefits
  • During Week 44 of 2012 through Week 3 of 2013 (November 2012-January 2013), Wallenkamp worked at Arby's
  • During two of the weeks Wallenkamp worked at Arby's, she also worked for Rocky Rococo's
  • Wallenkamp quit her job at Rocky Rococo's on December 1, 2012
  • Wallenkamp stopped working for Arby's on January 16, 2013 (Week 3 of 2013)
  • Arby's paid Wallenkamp for unused vacation time for the Week 4 of 2013
  • Wallenkamp then filed weekly claim certifications for UI benefits for the time period between Week 44 of 2012 and Week 4 of 2013 using the DWD's automated telephone claim filing system
  • The 4th question of the automated system asked: "During the week, did you work or did you receive or will receive sick pay, bonus pay or commission?"  Wallenkamp answered: "no"
To sum up the above facts, it is undisputed that Wallenkamp did work during the time period at issue, except during Week 4 of 2013.  Thus, the issue then was whether Wallenkamp concealed facts about her wages and employment status, with intent, while seeking UI benefits. 

The DWD conducted an investigation and determined that Wallenkamp was ineligible for benefits during the time period at issue, resulting in an overpayment of $1880.  The DWD also determined that Wallenkamp wa required to repay the overpayment, along with a concealment penalty of $282.  The DWD also found that Wallenkamp's concealment of wages and materials facts subjected her to a redaction of future benefits in the amount of $5264.  Wallenkamp subsequently appealed this decision and it went to a hearing before an Administrative Law Judge (ALJ).

At Wallenkamp's appeal hearing, she testified that she believed she correctly reported her employment and wages on her claim certifications.  When confronted with her responses to question 4, the ALJ told Wallenkamp that her answer "does not make any sense at all."  Wallenkamp further revealed that she was learning disabled and was confused by the discrepancy.  The ALJ then confirmed the DWD's determinations.  Wallenkamp then appealed to LIRC.

LIRC found that Wallenkamp incorrectly answered question 4 because she worked during the time period in question, did not report that she quit her employment with Rocky Rococo's in Week 48 of 2012, and did not report that she received vacation pay from Arby's in week 4 of 2013.  LIRC also noted, to the benefit of Wallenkamp, that, prior to week 43 of 2012, question 4 of the weekly claim certification simply asked, "Did you work?"  Beginning in week 43 of 2012, question 4 was modified to ask: "During the week, did you work or did you receive or will you receive sick pay, bonus pay or commission?"  LIRC determined that the modified question was "more susceptible to misinterpretation"; thus, Wallenkamp's incorrect answers were not sufficient evidence of an intent to conceal wages.

LIRC also found, contrary to the DWD and the ALJ, that Wallenkamp's testimony at her unemployment appeal hearing rebutted any presumption that she intended to defraud the DWD.  LIRC found that Wallenkamp:

(1)  credibly testified that she was confused by question 4; (2) was surprised when the ALJ informed her that she answered incorrectly; and (3) genuinely did not understand how to properly file her claims. 

Thus, LIRC upheld the DWD's requirement that Wallenkamp repay the $1880 overpayment, but reversed the portion of the DWD's order requiring Wallenkamp to pay a concealment fee and redacting her future benefits.  The DWD appealed this decision to circuit court and the circuit court affirmed LIRC, as did the Court of Appeals.

The case is WI Dept. of Workforce Development v. WI Labor and Industry Review Commission,
Docket: 2015AP000716     2016-02-02

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