Kenneth L. Risovi, Petitioner and Appellant
Job Service North Dakota, Respondent and Appellee
Appeal from the District Court of Wells County, Southeast Judicial District, the Honorable James D. Hovey, Judge.
Timothy C. Lamb, for petitioner and appellant.
Michael T. Pitcher, Assistant Attorney General, Office of Attorney General, for respondent and appellee.
Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.
[¶1] Kenneth L. Risovi appeals from the district court's amended judgment affirming the decision of Job Service North Dakota (" Job Service" ) disqualifying him from benefits from November 4, 2012, until October 26, 2013, on the grounds he had misrepresented facts in order to obtain benefits. We affirm.
[¶2] On November 5, 2012, a Job Service claims deputy issued an initial determination that Risovi misrepresented facts in order to obtain unemployment benefits, which he was not eligible to receive. Job Service disqualified Risovi from receiving unemployment benefits from November 4, 2012, to October 26, 2013. Risovi appealed the initial determination. On January 8, 2013, an appeals referee conducted a hearing to determine " the circumstances . . . surrounding th[e] [d]etermination, any wages reported or unreported, but more importantly if [Risovi] should have actually been disqualified from benefits for that one-year period of time."
[¶3] According to the testimony and exhibits offered at the January 8, 2013, administrative hearing, Risovi worked 351.5 hours in January 2012 for Milo Trucking. Risovi explained Milo Trucking offered him " 40 percent of what the truck made which at that time was anywhere's [sic] from $125 to $145 an hour, but . . . [Milo Trucking] couldn't pay [him] until the truck got paid which would have been a month and one-half later." Risovi asserted he could not go one and one-half months without pay so there was an oral agreement with Milo Trucking that he would be paid $260 per week for the month
of January, the approximate equivalent of 60 percent of his unemployment, and the commission would be paid in the future. Risovi's paycheck for the period from January 14, 2012, to February 13, 2012, was $10,320.92, with the paystub reflecting no hourly wage rate, and included a $6,100 payroll advance. Risovi claimed the $6,100 advance was a loan while Milo Trucking claimed it was for Risovi's work prior to January 14, 2012. For the week of January 7, 2012, Risovi reported to Job Service that he earned $260 for 26 hours rather than 94 hours actually worked. According to Risovi, " it really didn't matter how many hours I worked because if I can emphasize that I was working for a flat fee and there wasn't any concern how many hours I worked." Risovi explained that he provided " hours so basically to make that $260." Risovi pointed out that (1) he did not care how much his hourly wage came to, (2) he is not allowed to refuse work, at any rate, and claim unemployment, and (3) Job Service has no right to dictate what is an appropriate rate for work. Risovi claimed there is no proof in this case because it is his word against his employer; there is no proof Risovi received payroll checks, or that Risovi worked for what Milo Trucking claims is Risovi's recorded earnings. Risovi had a history of submitting claims with Job Service going back to 2008 which showed another of Risovi's employers also only reported 60 percent of the weekly benefit amount most of the time. Risovi explained this consistent reporting of 60 percent occurred because the work occurred during the slow winter months.
[¶4] Also considered by the appeals referee in Exhibit 4 were working notes that supported the investigation into the alleged fraud. The notes reflect that Risovi had indicated to the case manager that if he was not sent a payment he was going to lie and certify while he was working to receive payment. According to these notes, Risovi had indicated that he was going to start claiming weeks just to get his money.
[¶5] The appeals referee concluded the greater weight of the evidence in the record supported the finding that Risovi misrepresented his earnings for the entire month of January 2012. ...