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

THOMAS R KNIGHT, Employe

CITY OF KENOSHA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98603925RC

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is ineligible for benefits in weeks 6 through 9 of 1998. Thereafter, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed: January 13, 1999
knighth.usd : 135 : 7  MC 676

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In its petition for commission review and brief, the employer argues that the term disciplinary suspension found in Wis. Stat. § 108.04(6) refers to a suspension without pay rather than a suspension with pay. The employer further argues that a suspension prior to a disciplinary hearing is not a disciplinary suspension pursuant to Wis. Stat. § 108.04(6) but rather the equivalent of an administrative leave. The employer argues that its interpretation of Wis. Stat. § 108.04(6) is supported by Wis. Stat. § 62.13(5)(a). Any other interpretation, according to the employer, would render Wis. Stat. 108.04(6) meaningless. The commission rejects the employer's arguments.

The disciplinary suspension statute found at Wis. Stat. § 108.04(6) makes no distinction between a suspension with pay vis-a-vis a suspension without pay. The commission believes that the statutory construction relying on the plain meaning of the statute renders the legal conclusion that a disciplinary suspension begins the week in which the suspension begins regardless of how the employer characterizes the suspension, be it a leave with pay, a leave without pay, an administrative leave, or even a penalty imposed under a different statute.

The second argument the employer raises is that the UI Statutes were created to provide benefits to employes who are unemployed. According to the employer, unemployed means receiving no wages and a person on a suspension therefore is not unemployed. This argument however does not address the fact that the Legislature permits employed individuals to receive partial unemployment benefits even though they remain partially employed. See Wis. Stat. § 108.05(3). Moreover, the Legislature permits suspended individuals to receive benefits if their suspension is not with good cause. See Wis. Stat. § 108.04(6). Therefore, even though the employe suffered no wage loss between week 6 through week 16, the fact remains that the week of issue in this case is the week in which the disciplinary suspension was imposed by the employer, here week 6, regardless of the fact that the suspension was for pay and prior to the employe's disciplinary hearing before the City's Fire and Police Commission.

The commission therefore is satisfied that Wis. Stat. § 108.04(6) makes no distinction between a suspension with pay and a suspension without pay as to when the week of suspension begins. The suspension begins when the suspension is imposed regardless of how the employer characterizes the suspension. Accordingly, the commission concludes that the ALJ properly interpreted Wis. Stat. § 108.04(6) and the commission affirms the appeal tribunal decision.

cc: ATTORNEY RICHARD THAL
WISCONSIN PROFESSIONAL POLICE ASSOC
LAW ENFORCEMENT EMPLOYE RELATIONS

Appealed to Circuit Court.  Affirmed May 1, 1999. (Summary of court decision). Appealed to the Court of Appeals.   Affirmed May 3, 2000, sub nom. City of Kenosha v. LIRC and Thomas R. Knight, 2000 WI App 131, 237 Wis.2d 304, 614 N.W. 2d 508

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