Wis.LIRC UC Decision: Wilkes - January 29, 2001 - MC 630.20 - Dishonesty; work application, misrepresentation - failure to disclose 1991 disorderly conduct conviction - employe claimed she did so because her probation officer had told her she was "clear" and department of corrections no longer had a record on her - failure to disclose found intentional, and misconduct

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

RUBY J WILKES, Employee

ALEXIAN VILLAGE OF MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00605061MW

On June 7, 2000, the Department of Workforce Development issued an initial determination which held that the employee had been discharged for misconduct connected with her employment. The employee filed a timely request for hearing on the adverse determination, and hearing was held on January 19, 2000 in Milwaukee, Wisconsin before a department administrative law judge. On July 20, 2000, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for review of the adverse determination, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately 7 weeks as a certified nursing assistant for the employer, a retirement community. The employer discharged her on February 29, 2000 (week 10), for alleged falsification of her employment application. The commission concludes that the evidence is sufficient to establish that the employee's failure to list a criminal conviction was intentional, and so reverses the appeal tribunal decision.

In January of 1991, the employee was convicted of disorderly conduct. She had pled no contest to the charge, and had been sentenced to a year's probation. At the end of the employee's probation, her probation officer told her that she was "clear," that she had "nothing else to worry about." By 1998, the State of Wisconsin's Department of Corrections indicated that the employee had no record with that department.

When the employee filled out her employment application, she answered in the negative the question whether she had ever been convicted of any crime anywhere, including in federal, state, local, and tribal courts. She did so because her probation officer had told her she was "clear" and because the state's department of corrections had no record on her.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The commission concludes that the employee's failure in truthfully filling out her employment application, meets this standard. At a minimum, employers may expect honesty from their employees in the filling out of employment applications. The employer, a retirement community, has both a legitimate and statutorily required basis for assessing the relevance of criminal convictions of prospective employees. Failing to disclose the full truth on an employment application prevents an employer from fulfilling that duty, and thus easily is the substantial disregard of an employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore concludes that, in week 10 of 2000, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. � 108.04(5).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 10 of 2000, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred.

For purposes of computing benefit entitlement, base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed January 29, 2001
wilkeru.urr : 105 : 1 MC 630.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge reasoned that the employee sincerely believed the disorderly conduct conviction she had, was not a conviction. The commission cannot accept this conclusion, however. The employee was on probation for a substantial length of time. Even if the matter were not a serious one, there still is no question but that it was a conviction which, as such, the employee had to disclose on her employment application.

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uploaded 2001/02/01