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

MICHAEL D VINARSKY, Employee

LUTHERAN SOCIAL SERVICES OF WISCONSIN & UPPER MICHIGAN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608856MW


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 about eight and one-half years as a caregiver for the employer, a group home for developmentally disabled individuals. His last day of work was August 30, 2001. He was discharged from his employment on August 31, 2001 (week 35).

The employer is required by law to perform background checks on its employees. The employee was hired in 1993 and filled out an employment application. One question on the application was, "Have you ever been convicted of a crime, or are there any currently pending charges against you?" The employee was given the choice to check "yes" or "no." If the employee checked "yes," he was asked to describe the details of the conviction. The application provided that any misrepresentation or omission might be grounds for rejection of the application or for dismissal if the employee was employed.

The employee checked "no" in response to the question of whether he had ever been convicted of a crime. The employee had been convicted of disorderly conduct in 1980. The employee had solicited a police officer for sexual favors.

On August 30, 2001, the employer asked the employee if he had a criminal conviction. The employee stated that he did not. The employer then showed the employee a Department of Justice Crime Information Bureau report indicating the employee had been convicted of disorderly conduct. The employee then stated that he believed the conviction had been removed from his record. The employer replied that the question on the application was whether he had ever been convicted of a crime, not whether he believed he had a clear record. The employer discharged the employee for dishonesty in completing an employment document.

The issue to be decided is whether the employee was discharged for misconduct connected with his employment. 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 was convicted of a crime. The employee failed to disclose that conviction on his employment application. The employer had a right, and an obligation, to inquire into the employee's conviction record. The employer was entitled to an honest response from the employee. The application gave the employee the opportunity to explain the circumstances surrounding the conviction. Further, the employee could have disclosed the conviction and discussed with the employer the basis for his belief that it had been removed from his record. The employee was not asked whether he had a conviction that still remained on his record, but whether he had been convicted of a crime. The employee did not provide an honest response to the employer's question.

The commission therefore finds that in week 35 of 2001 the employee was discharged for misconduct connected with his work for the employer within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $2,922.00 for week 36 of 2001, weeks 41 through 52 of 2001, and weeks 1 through 3 of 2002, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits in weeks 35 of 2001 through week 3 of 2002. Department records reflect that the employee requalified for benefits in week 4 of 2002. The employee was overpaid $2,922.00 of which $39.00 (already recovered) is included in the amount set forth by Form UCB-37 (Notice of Overpayment) for week 51 of 2001, dated January 10, 2002. The total amount to be repaid to the Unemployment Reserve Fund as a result of this decision is $2,883.00.

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 April 10, 2002
vinarmi . urr : 132 : 8 :  MC 630.20

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

 

MEMORANDUM OPINION

The commission did speak with the ALJ regarding witness credibility and demeanor. The ALJ did not actually credit that the employee believed the police officer when the officer told the employee that the conviction would not appear on his record. The commission's reversal is based on finding that, despite any such conversation, the employee was still obligated to disclose that he had been convicted of a crime.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: 
Lutheran Social Services
Attorney Jason Kunschke
Continental Consultants


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uploaded 2002/04/19