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


LARRY TEAGUE, Employee

NEW GRANCARE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00606340MW


The Department of Workforce Development (department) issued an initial determination on July 13, 2000, finding that the employee's discharge was not for misconduct connected with his employment, in week 49 of 1999. The employer timely appealed and a hearing was held before an administrative law judge (ALJ). On August 23, 2000 the ALJ, amended the department's determination as to the week of issue and, as amended, affirmed the decision finding that the employee was eligible for benefits beginning in week 45 of 1999. The employer timely petitioned the commission for review of the appeal tribunal decision.

On November 16, 2000, the commission, pursuant to Wis. Stat. § 108.09(6)(d), on its own motion, ordered that testimony be taken before an ALJ acting on behalf of the commission with respect to the employer's reasons for the employee's discharge. The remand hearing was held on January 18, 2001, before an ALJ.

The commission has considered the petition, the parties' positions, and reviewed the evidence submitted at both hearings. Based on the applicable law, record and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately 6 weeks as a housekeeper and laundry aide for the employer, a health care facility. The employee's last day of work was November 2, 1999 (week 45). The employee was thereafter discharged.

Prior to employment, the employee prepared an application for employment in which he certified that all of his statements made in the application were true and correct to the best of his knowledge and belief. The statement also indicated the employee understood and agreed that any misrepresentation or admission of facts in his application may be justification for refusal to hire, or termination of the employment. In response to a question "Have you ever been convicted of a crime (misdemeanor and felony)?" The employee replied, "No." However, a background check submitted by the employer indicated that the employee had been convicted of several crimes.

The employee did not appear at the initial hearing. In addition, the representative for the employer did not know the actual reason for the employee's discharge since that decision was made from the employer's headquarters in Maryland. Consequently, the commission ordered a remand hearing. At the remand hearing, the employee again did not appear. The senior vice-president of Audit and Compliance testified on behalf of the employer. This witness is responsible for the employer's corporate compliance program, its internal audit process and administrating the employer's background and criminal history check program within the company. The witness explained that the employer requires a comprehensive criminal background check for all individuals applying for employment with its company. The witness indicated that these additional checks are "above and beyond" what any individual state may require, including, social security number verification, national warrants searches, searches for fraudulent checks and licensure and certification problems if appropriate. The employer has established certain barrier crimes and if its independent verification background check indicates that there is a conviction, misdemeanor or felony, the employer compares the finding to its lists of barrier crimes. If the conviction, misdemeanor or felony falls within the list of the employer's barrier crimes, the employee will not be hired or in this case will be terminated.

Although the employer's witness indicated that he did not have any personal knowledge of the employee's specific termination, based on the employer's practice and procedure, the employee was fired because he did not meet the employer's hiring criteria, based on the employer's independent background check. The report entered into evidence at the remand hearing indicates that the employee did not meet "Criteria E. Barrier Crime Conviction, for possession of controlled substance - party to, on June 28, 1994." While the exhibit was not certified as requested in the remand order, the witness identified it as a background check performed by its independent verification company and that such reports are routinely seen in the witness' job as compliance officer.

The issue for review is whether the employee's discharge is for misconduct connected with his employment. The ALJ concluded that there was no indication that the discharge was for falsification of the documents which would have been misconduct or because of a criminal background, all of which occurred prior to the employee's employment and would not have amounted to misconduct.

After reviewing all the evidence, the commission infers that the employee falsified his job application. The purpose of the employer's criminal background check is to verify that an employee's job application is indeed true and accurate. The job application that the employee signed indicated that his statements were true and correct, when in reality he had been convicted of at least one crime as indicated in the employer's background check. The employer has a right to expect honest responses to inquiries reasonably related to an employee's employment. The commission is therefore satisfied that the employee's failure to disclose his prior conviction(s) as requested by the employer amounts to misconduct.

The commission therefore finds that the employee's discharge was for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5), in week 45 of 1999.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 45 of 1999, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. There is no overpayment. The employee has requalified as of the new claim week, week 27 of 2000.

Dated and mailed February 20, 2001
teagula.urr : 135 : 1  MC 630.20

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did not confer with either ALJ as to credibility impressions. The commission reverses the appeal tribunal decision as a matter of law reaching a different legal conclusion when applying the facts at hand. The commission is satisfied that the employee intentionally misrepresented an answer on his work application and as such committed misconduct within the meaning of Wis. Stat. § 108.04(5).


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uploaded 2001/02/26