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

YVONNE THOMAS, Employee

SAN CAMILLO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608885MW


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 approximately nine months as a residential aide and certified nursing assistant for the employer, a residential care facility for the elderly. The employee's last day of work was September 8, 2001 (week 36). The employee was discharged on September 10, 2001 (week 37).

The employee was assigned a "bailer shift" in which she worked two 12 hour night shifts, 7:00 p.m. to 7:00 a.m. on Saturday and Sunday. The employee was also assigned to the Alzheimer's/Dementia unit. On September 8, the employee was sitting with a resident in the TV room of the unit where she was working. Shortly after 10:00 p.m. on September 8, a maintenance worker entered the room and saw the employee leaning back in a chair with her eyes closed. The maintenance worker cleared his throat and received no response from the employee. He then wrapped his keys on the table and she sat up. The maintenance worker observed the employee for a total of one and one-half to two minutes but he was not sure whether the employee saw him when she sat up in the chair. The maintenance worker did see the employee open her eyes when she sat up. The maintenance worker reported the incident to his supervisor and an investigation was conducted which ultimately resulted in the employee being discharged.

The employer's work rules specifically state that sleeping or the appearance of sleeping on the job is a Class B offense and that any employee will be subject to discharge for such Class B offenses. Class B offenses require that an employee be suspended pending investigation and, if the allegations are found to be justified, the employee will be discharged.

The issue is whether the employee was discharged for misconduct connected with her 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."

More specifically, in order for misconduct to be found it must be established that the employee's falling asleep was intentional. See Richard J. Ludenia v. Moodys Inc, UI Dec. Hearing No 01200125NR (LIRC February 8, 2002); Seelow v. Scapa Rolls (Neenah) LP, UI Dec. Hearing No. 00403067AP (LIRC December 20, 2000). However, even an isolated instance of sleeping may constitute misconduct based upon the nature of the employee's employment. In Rory Jackson v. Snap On Tools MFG Company, UI Decision Hearing No. 99607424MW, (LIRC February 24, 2000), the commission held that misconduct may be found for even a single instance of sleeping for employees with jobs in which one of the inherent responsibilities for the employment is to be alert and a failure to do so would create an immediate threat to the safety and welfare of persons and property. Previously, in Lisa A. Washington v. LIRC and Meritus Eduation Resources Co., UI Dec. Hearing No. 97603571MW, (LIRC November 27, 1997), affirmed Case No. 97-CV-010214 (Wis. Cir. Ct., Milwaukee County, May 15, 1998), the commission found that degree of inherent responsibility and concluded that a single instance of falling asleep at work was misconduct. In Washington, an aide at a daycare center was responsible for four and five year olds. In affirming the commission decision, the circuit court gave great weight to the commission's determination that sleeping while on a job which requires supervision of a classroom of four and five year olds is careless or negligence of such a degree so as to constitute misconduct.

By analogy, the commission reaches a similar result based on the facts before it. Although the instance here was isolated, the employee's job duties as a CNA on an Alzheimer's/Dementia unit required her to be alert at all times and the employee's failure to do so created an immediate threat to the safety and welfare of the resident in the room with her as well as the other residents on the unit. Furthermore there was no proof of mitigating circumstances regarding the employee's conduct. Under all of these circumstances, the commission is satisfied that the employee's conduct constitutes negligence of such degree so as to manifest equal culpability, thereby establishing misconduct within the meaning of Wis. Stat. § 108.04(5).

The commission therefore finds that in week 37 of 2001, the employee was discharged for misconduct with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits amounting to a total of $7750 for which she is not eligible and to which she is not entitled, with in the meaning of Wis. Stat. § 108.03 (1). Pursuant to Wis. Stat. § 108.22 (8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of department 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 misrepresentation of the law or mistake of evidentiary fact, or for misinformation provided to the 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 is not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), be cause although the over payment 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 appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2001, and until seven weeks have elapsed since the end of the week of discharge and the employee 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account. The employee is required to repay the sum of $7750 to the Unemployment Reserve Fund.

Dated and mailed May 15, 2002
thomayv . urr : 135 : 8  MC 659.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not consult with the administrative law judge before determining to reverse the appeal tribunal decision. The commission's decision to reverse the appeal tribunal decision is not based upon a different assessment of credibility. Rather, the commission is satisfied that this single instance of falling asleep at work was so grossly negligent as to amount to misconduct within the meaning of the law.


Editor's Note: This decision has been modified to correct a typographical error.


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2002/05/20