Wis.LIRC UC Decision: Schweikert, Brian - March 24, 1992 - MC 605.091 - Absence, Arrest-Incarceration - where employee is unable to appear for work because he has been jailed due to his actions or failure to act which could forseeably result in incarceration making him unavailable for work, discharge for failing to appear at work is for misconduct connected with employment

BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

BRIAN W. SCHWEIKERT, Employee

GANTON TECHNOLOGIES, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 91-606281

On September 19, 1991, an Appeal Tribunal Decision was issued, affirming a Department Deputy's Initial. Determination, and holding that in week 27 of 1991, the employe's employment was terminated by the employer because he was unable to do, or unavailable for, suitable work otherwise available with the employer, within the meaning of sec. 108.04 (1)(b)1, Wis. Stats., and that beginning in week 28 of 1991, he was able to work and available for work on the general labor market, within the meaning of said section. Benefits were allowed as of week 28 of 1991. On September 27, 1991, the employer timely filed a petition for review.

Based on the applicable law, records and evidence in this case, the Commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked during about 13 months as a die cast operator for the employer, a manufacturing company. His last day of work was June 6, 1991 (week 23). The employer terminated the employment relationship on July 1, 1991 (week 27).

During the calendar week ending July 13,199 1 (week 28), the employe reopened a claim for benefits. He filed claims for weeks 28 through 31 of 1991, weeks 35 through 49 of 1991, and weeks 1 through 7 of 1992. He was paid $225 for each of weeks 28 through 30 and 35 through 48 of 1991 and weeks 1 through 7 of 1992; $131 for week 31 of 1991; and $387 for week 49 of 1991, for a total of $5,918.

The first issue to be resolved is whether the termination was a discharge for misconduct connected with work under sec. 108.04 (5), Wis. Stats., or whether the termination was for the employe's unavailability under sec. 108.04 (1)(b)1, Wis. Stats. If the termination falls under sec. 108.04 (5), Wis. Stats., no further issues are relevant. However, if the termination falls under sec. 108.04 (1)(b)1, Wis. Stats., then the second issue is whether and, if so, when, the employe was available to work on the general labor market.

The employe did not report for work following June 6, 1991, because he was incarcerated on a 1988 OWI (operating a motor vehicle while under the influence of intoxicants) charge. He was held for failing to pay the outstanding traffic fine from the 1988 charge. He was afforded the option of paying a $519 fine or serving 25 days in jail. He did not have the money to pay the fine, and he unsuccessfully attempted to be released under the Huber Law. He was absent from work for 14 scheduled working days.

He notified his employer of his absence each day and the reason therefor. He requested and was denied use of vacation time for the absence. He was released from jail on June 25, 1991 (week 26). He could have returned to work on June 26, but was instructed to set up an appointment with the employer. He did so and a meeting was held on July 1, 1991 (week 27). The employer terminated his employment at that time pursuant to a collective bargaining agreement work rule permitting discharge for incarceration. The employe was able to work and available for work when he reactivated his claim for unemployment benefits in week 28 of 1991.

The employe contended that he was absent for a reason beyond his control, i.e., the incarceration. He further contended that the 1988 OWI charge occurred long before he began his employment with the employer on April 30, 1990 and, therefore, was not connected with his employment.

The employe knew he had never paid the fine for the 1988 OWI charge. Therefore, he knew, or should have known, a consequence would follow from his failure to pay the fine. Total responsibility for his act and the foreseeable consequence (jail) rests with the employe.

The employer has a legitimate right in the furtherance of its interests to establish reasonable attendance rules for employes.

To be absent 14 consecutive work days is substantial. The employer was under no duty to grant a leave for vacation purposes.

In a practical sense, the employe's ability to get out of jail and go to work was beyond his control after he knowingly and intentionally failed to pay his fine. Yet the critical time when the employe was in full control of the situation was before he chose operate a vehicle while under the influence and thereafter during the year or two when he chose not to pay the fine.

The Commission's policy on cases where an employe is discharged as a result of being jailed, and thereby unavailable for work although the employer has work available is best expressed by the court's memorandum decision in Joe D. Culp v. Consumers Steel and Supply Co., and Ind. Comm. of Wisconsin, Dane County Circuit Court (December 11, 1958):

"There is no dispute as to the facts in this case. The practical question which presents itself is: Does the course of conduct now disclosed by the employer constitute a wilful and substantial disregard of the employer's interest, or wags the employee discharged for a valid reason within the meaning of the Section 108.04 (5)(a) of the Wisconsin Statutes? At the time he was in jail he was charged with committing a felony. He later pleaded guilty. The Industrial Commission had to determine, as we do now, whether an employee who failed to report for duty, can maintain his relation with the employer merely by notifying the employer that he is held waiting trial on a felony charge to which he later pleads guilty.

"An employee who wilfully and intentionally starts the chain of events which created circumstances making him unavailable is certainly the defaulting actor. In determining the question of availability, the end result must be directly related to the beginning of the course of conduct. In this and in similar cases he is acting inconsistently with the continuation of the employee-employer relationship. It would be contrary to the policy and purpose of the legislation providing for unemployment compensation to cast that burden of a self-created disadvantage of and by the employee onto the shoulders of the employer, by leaving him with work to be done and no available employee to do it. The work was present July 1st and continued to be. On July 6th the employer notified the Union, of which the Employee was a member, and the plaintiff of the discharge. In the Memorandum Decision of the Industrial Commission, it is said:

'(MEMORANDUM: Although prior appeal tribunal and Commission decisions have held that employees who were arrested and incarcerated for an appreciable period of time because of off-job conduct were not discharged for misconduct connected with their employment, we feel that such decisions were in error.

'Many of our decisions regarding absenteeism from work hold that employees who absent themselves from work, with or without prompt notice to the employer, were discharged for misconduct connected with their employment if the absences were for invalid reasons.

'The arrest of an employe for off job conduct is not per se misconduct connected with employment. Depending upon the reason for the arrest and the nature of the employe's duties, it may be considered misconduct connected with employment if under the circumstances, it directly affects his suitability for his work. This would be so even if no appreciable absence from work resulted. However, if the nature of the arrest does not affect an employe's suitability for work, then the question is resolved by considering the resulting absence from work. If it does not affect suitability and does not result in an appreciable absence from work, it is not considered misconduct connected with employment.

'In the instant case the crime for which the employe was arrest was not connected with his employment. However, the result of his being arrested and incarcerated made it impossible for him to work for a period of at least three weeks, and his absence is deemed to be connected with his employment and is for an invalid reason.)"

"The doctrine followed by the commission prior to 1956 was never wholly settled. There have been contrary interpretations and valid precedents exist which now have been accepted in this case. The reasoning which is to be followed is set forth in the Commission's brief and it refers to the case of Howes Bros. v. Unemployment Compensation Com., 296 Mass. 275. It reads as follows:

'Reasoning:

'To grant an employee's benefits where his employment has been terminated as a result of imprisonment for consequence of his own crime is against public policy. The failure of the respondent to report to work was due to the criminal failure of respondent to perform his obligations under the law. The law will not assist a person to gain alleged rights where there has been a criminal. failure to perform his legal obligations. By his own conduct the employee voluntarily placed himself in jeopardy. The Legislature of this State, I believe, never intended that a man who was sent to prison for a wilful criminal act should be entitled to unemployment compensation benefits without reservation. "Unemployment compensation differs from relief in that payments are made as a matter of right . . . payment of compensation is conditional upon continued involuntary unemployment . . . The design of the Act is to afford relief to those who have been . . . thrown out of work through no fault of their own." To insure a man who has been sentenced to jail for the commission of a crime against the resultant loss of his job would appear to subvert the purposes for which the unemployment compensation law was enacted.'

"The rule of stare decisis does not control so as to prevent the action of the Commission. Rights are not so involved as to make the misinterpretation a rule of property. Reiter v. Grober, 173 Wis. 493.

"The Statute creates a relation of employment which affords an employee the 'privilege based on his availability to render services. This opportunity exists under prescribed conditions and the benefits are not to be claimed when an employee fails to perform his part. There is a positive relation between the work opportunity and the availability of the employee. If he, the employee, places himself so as to be unable to do his share in maintaining the relationship, the failure is his. He cannot tear the relationship to pieces and offer his guilt of a felony as a reason to excuse his default.

"I am, therefore, of the opinion that the employe was discharged for misconduct related to and connected with his employment. The employee, by his conduct off the job, set in motion, as the Commission contends, a series of events which prevented him from reporting for work an extended period, resulting from his off-the-job conduct. It resulted in his incarceration and prevented him from performing his duties for the employer. It must be regarded and treated as an intentional and substantial disregard for the employer's interest, violating the standard of behavior which the relation requires of an employee. The decision of the Commission is affirmed in all respects."

Although in the case the reason for the employe's continuing incarceration was not connected with his employment, the result of his being incarcerated made it impossible for him to work for a period of 14 working days, a considerable period of time, evincing an intentional and substantial disregard for the employer's interests.

The Commission therefore finds that in week 27 of 1991, the employe was discharged for misconduct connected with his work, within the meaning of sec. 108.04 (5), Wis. Stats.

The Commission further finds that the employe was paid benefits in the amount of $5,918, for weeks 28 through 31 of 1991, and weeks 35 through 49 of 1991, and weeks 1 through 7 of 1992, for which he was not eligible and to which he was not entitled, within the meaning of sec. 108.03 (1), Wis. Stats., and that, pursuant to sec. 108.22 (8)(a), Wis. Stats., he is required to repay such. sum to the Unemployment Reserve Fund.

DECISION

The decision of the Appeal Tribunal is modified and, as modified, is reversed. Accordingly, the employe is ineligible for benefits beginning in week 27 of 1991, 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 equalling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $5,918 to the Unemployment Reserve Fund.

Dated and mailed March 24, 1992.
115 : CD0010 MC 605.091

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: Base period wages: 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 employe 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 find's balancing account and for a reimbursement employer, to the fund's administration account.

NOTE: Federal law allows waiver of an overpayment of Emergency Unemployment Compensation when the overpayment overpayment was not the fault of the claimant and recovery would cause extraordinary financial hardship. An application for waiver can be obtained by sending a letter to: Unemployment Compensation Division; EUC Waiver Request; P.O. Box 7965; Madison, WI 53707.

MEMORANDUM OPINION

The Commission does not disagree with the Administrative Law Judge's assessment of credibility and demeanor of the witnesses. The Commission has modified the Appeal Tribunal Decision to conform with its policy in cases such as this one.

cc:
Susan L. Ketter, Adjuster
c/o/ Allmark Services, Inc.

Ganton Technologies, Inc.

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