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

JACQUELINE A COFFEY, Employee

ST FRANCIS HOME OF FOND DU LAC WISCONSIN INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01002024FL


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked four and one-half years as a certified nursing assistant for the employer, a nursing home. Her last day of work was March 6, 2001 (week 10).

As part of the employee's training, she was made aware of the employer's confidentiality policy. She also knew that violation of the confidentiality policy subjected a worker to discharge. Further, if the employee had a complaint about a resident's safety or health, she knew she could contact an ombudsman.

The employee was discharged for sending an e-mail to the Wisconsin Health Care Association, a for-profit public relations agency, and the Wisconsin Association of Homes and Services for the Aging, a not-for-profit agency. Neither is a state agency. The employee also sent the e-mail to the Bureau of Quality Assurance of the Department of Health and Family Services. The e-mail states:

I reall (sic) dont (sic) know who to turn to, but I have been working for St. Francis Home in Fond du lac, Wi for 6 years as a Certified Nursing Assistant. I have seen needless accidents happens to many of our residents because Sister Irene, our Administrator and Gary Thiesen our Assistant Administrator, have consistently failed to supply an adequate CNA staff, so we are worked to the bone because we are always short. Nurses handle or give wrong medications, just the other night Mr. Louis [last name appears in original but is deleted in the Exhibit] fell ripping his skin open and rushed to the hospital around the corner, because we were short, but I could go on and on. We have no motavation (sic), no employee incentives, no educational assistance and every 6 months the benefits are being changed and the quality gets worse. We were just given a memo the other day that our health care carrier will experience a 37% increase effective March 1st. Deductibles are now going to be $500, generic from $5 to $10, Brand from $10 to $20. Wre (sic) is our Governor!, were (sic) is our President, are they too busy bombing Iraq. I'm more concerned with my residents then anything else and it goes unnoticed, unreported to the outside & stays within the building. Then we complain and Sister Irene Cohen hires this fast talking tax motivator from Milwaukee, and talks to us at a meeting about how we should claim more deductions on our taxes to get out of debt and that next week he'll show us how if we pay $25 each and come back for his seminar. I told my husband this and (sic) practically fell apart, telling me that it sounded illegal. Please dont (sic) brush me off. If you can't help me, please refer me to someone who can. And could you kindly send me back a copy of this letter I wrote you for my records. Thank you, Sincerely, Jackie Coffey. PS, maybe I should write to the Governors Office, what do you think?

The employer discharged the employee for using the name of a resident in the body of the e-mail, thus constituting a breach of confidentiality as set forth in its policies. Exhibits C-F. (1) The employee had previously sent a letter to the administrator complaining about insurance, low wages, and retirement issues.

The issue to be decided is whether the employee was discharged for misconduct connected with her work. In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

. . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute.

The employee's e-mail was meant to express her concerns about resident care and safety. The employee did not intentionally break the employer's confidentiality rule. The employee believed that she was expressing her concerns to state agencies. Certainly the employee could have expressed her concerns to the ombudsman utilizing the telephone number posted in the employer's facility. However, the law allows the employee to express concerns over nursing home residents' care and safety with the ombudsman or any state official. The employee's failure to utilize a more expedient and certain method of contacting an appropriate individual or agency does not demonstrate that the employee engaged in intentional disclosure of confidential information.

The employer conceded that if the e-mail had been sent to DHSS or the State Ombudsman the action would have been proper. The employee sent the e-mail to the Bureau of Quality Assurance of the Department of Health and Family Services, an appropriate agency to receive allegations of resident abuse or neglect. The employee testified that she thought she was making her complaint to the correct agencies. Further, the employer's human resources director testified that she assumed the employee thought she was e-mailing the State of Wisconsin, Bureau of Health Services.

The commission therefore finds that in week 10 of 2001, the employee was discharged from her employment but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2001, if she is otherwise qualified.

Dated and mailed August 23, 2001
coffeja . urr : 132 : 1 : MC 687 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding her impressions of witness credibility and demeanor. The administrative law judge did not believe the employee was motivated by concerns for patient safety. The commission disagrees. The e-mail clearly begins with the employee's concerns over patient safety and also notes her desire that her concerns be addressed to the appropriate agency. There is no evidence that the employee believed that the entities to which she sent the e-mail would be favorably disposed to complaints about pay and insurance. The administrative law judge considered that the employee had been careless in divulging the resident's name, but also did not believe the employee gave consideration to implications of doing so; namely, that such act would be viewed as a breach of confidentiality. The commission agrees that the employee may have acted carelessly, but does not agree that her actions were done in willful or intentional disregard of the employer's interests.

cc: 
Attorney Carol N. Skinner
Attorney Lisa L. Kritske


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Footnotes:

(1)( Back ) In its brief the employer argues that the employee was discharged for violating Wis. Stat. § 146.82(1). That section prohibits release of health care records to unauthorized individuals or entities. That section does not apply, as the employee did not release any health care record

 


uploaded 2001/08/27