JULIE BURGOS v. MCDONALDS RESTAURANT, 571-BR-21

DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

The administrator ruled the claimant eligible for unemployment benefits effective April 5, 2020, and notified the employer of its chargeability on May 6, 2020. On May 18, 2020, the employer appealed the administrator's decision to the Waterbury office of the appeals division. The appeals division scheduled a hearing of the appeal for April 6, 2021, in which the claimant and employer participated. By a decision issued on April 21, 2021, Associate Appeals Referee Meesoon N. Lee reversed the administrator's ruling.

The claimant filed a timely appeal to the board of review on May 7, 2021. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the recording of the referee's hearing.

II. ISSUES AND PROVISION OF LAW

In support of her appeal from the referee's decision, the claimant requests a waiver of the overpayment created by the referee's decision. The issue before the board is whether the claimant was able to work and available to work from April 5, 2020, through April 3, 2021, pursuant to General Statutes § 31-235(a)(2).

III. FINDINGS OF FACT AND CONCLUSION OF LAW

To be available for work an individual must be ready, willing, and able to accept suitable full-time employment during each week he or she files a claim for unemployment compensation benefits. The individual must be unequivocally exposed to the labor market with no restrictions that would severely impair his or her prospects of obtaining work at the earliest possible time. LeClerc v. Administrator, 137 Conn. 438 (1951). At the referee's hearing, the claimant testified that she was unable to work during the weeks at issue initially because she was self-quarantining and then because she had to provide childcare and assist in remote learning for her eight-year-old daughter whose school was closed because of the pandemic. Consequently, we agree with the referee that the claimant was not available to work full-time and cannot establish eligibility for regular unemployment benefits. See, e.g., Nazarian v. Izbicki Contracting LLC, 945-BR-20 (9/10/20) (claimant ineligible to receive regular unemployment benefits where he was unable to find childcare for his school-age children while schools are closed due to the COVID-19 pandemic). Nonetheless, the claimant may apply for pandemic unemployment assistance as advised below.

Based on the existing record, we find that the referee has adequately addressed the claimant's contentions. Moreover, the claimant has not offered any argument in support of her appeal that would disturb the referee's findings of fact. We further find that the findings are supported by the record, and that the conclusion reached by the referee is consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act. Accordingly, we adopt the referee's findings of fact and decision.

IV. DISPOSITION AND ORDER

The referee's decision is affirmed, and the appeal is dismissed. The claimant is ineligible to receive unemployment compensation benefits from April 5, 2020, through April 3, 2021.

V. PARTIAL WAIVER OF OVERPAYMENT

The claimant is advised that, because of the referee's decision, she was not entitled to the benefits she received. However, in Rosell v. United Avionics, Inc., Board Case No. 1416-BR-91 (2/7/96), the board ruled that a delay by the appeals division in issuing a decision more than a short period beyond forty-five days after the filing of an appeal to the referee will generally be deemed unreasonable in the absence of exceeding case complexity or other extraordinary circumstances. We further ruled that the portion of an overpayment directly attributable to such unreasonable delay may be waived on the basis of gross administrative error. Regs., Conn. State Agencies § 31-273-4(a)(3).

The employer's appeal to the referee was filed on May 18, 2020. The appeals division scheduled a hearing of this appeal for April 6, 2021. The decision in this case was mailed by the appeals division on April 21, 2021. We find no circumstances which would justify the appeals division's delay in issuing a decision in this case, and we conclude that the overpayment directly attributable to that delay should be waived.

We hereby waive that portion of the overpayment resulting from unemployment compensation benefits paid to the claimant for the period after July 23, 2020, the week-ending date of the week in which falls the sixtieth day following the date the employer filed its appeal to the referee.

However, the claimant is advised that because of the decision, she was not entitled to the benefits she received and may be charged with an overpayment for the benefits that she received prior to July 23, 2020. The administrator by separate determination will notify the claimant of the amount of any overpayment which will be charged to the claimant and options for repaying it. The claimant will have an opportunity to apply for waiver of the remaining overpayment on any applicable grounds, including the administrator's determination that the employer failed to timely participate in the referee's hearing pursuant to General Statutes § 31-241(a). However, once this decision becomes final, the claimant will not have another opportunity to contest the fact that the claimant was overpaid benefits. The appeal rights printed below explain that this decision will become final in thirty days after the mailing of this decision unless the claimant files a further appeal.

The claimant is further advised that individuals who do not qualify for unemployment compensation benefits may be eligible for Pandemic Unemployment Assistance (PUA) for weeks they are unemployed, partially unemployed, or unable or unavailable to work due to one of the COVID-19 related reasons listed in Section 2102(a)(3)(A)(ii)(I) of the CARES Act. The PUA application may be accessed by going to www.filectui.com and clicking the red button. Please consult the Connecticut Department of Labor website for additional information about PUA: http://www.ctdol.state.ct.us/PUA.

BOARD OF REVIEW

_________________________________

Susan Garcia Nofi, Chairperson,

ES Board of Review

In this decision, Alternate Board Member Elizabeth S. Wagner concurs.

SGN:SSW:jro

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COPIES OF THIS DECISION PROVIDED TO:

BENEFIT PAYMENT CONTROL UNIT

Department of Labor

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Wethersfield, CT 06109