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

JEAN R PERET, Employee

WARNER CABLE COMMUNICATIONS OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600452MW


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 for approximately twelve years as a customer service representative for the employer, a cable company. Her last day of work was December 12, 2001 (week 50), when the employer discharged her for altering company promotions, policies and procedures to illegally obtain sales commissions.

The employee received incoming calls from cable customers with service problems. She could earn a commission if she was able to sell these customers additional cable or Internet services.

A couple of customer service representatives approached the employer's customer service supervisor and questioned why the employee's commission's were so high when they were working the same number of hours as the employee. The employer receives bi-weekly print outs of sales made by its customer service representatives. The employer checked the employee's sales and noted that they far exceeded those of other similarly situated workers. The employer conducted an audit on the sales made by the employee. The employer discovered that the employee had added services to customers' accounts in an unauthorized manner, most recently on December 3, 2001.

The employee would remove an existing service from a customer's account and then add that service back on to the account. By doing so, the employee obtained credit for a sale and generated a commission.

When adding a digital service to an account the employer would send a technician to the customer's home to install necessary equipment. The employee would remove an existing digital service, add the service back on and note that it was an "office only," thus ensuring that a technician would not be sent to the customer's home.

If an individual called to have an existing account placed in that individual's name, the customer service representative was required to obtain a social security number, driver's license, and employment information in order to determine that the individual's credit qualified the individual to have an account. The information would also allow the employer to determine whether the individual had a prior account that had not been paid. If the individual qualified, the employer would send a technician out to physically disconnect the existing service and reconnect the new service. The employer discovered that the employee transferred an existing account to another individual without obtaining the aforementioned information. The employee designated the change as "office only," again ensuring that a technician would not be sent to the account.

The employer counseled the employee on April 18, 2001, September 27, 2001, and October 27, 2001, for improperly adding services on to accounts that already contained those services. The employer discharged the employee for her continuing use of improper procedures to obtain commissions.

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's 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 contended that everything she did was out of concern for her customers and she did not care if she received a commission. The employee's conduct belies her assertion. The employee improperly removed and added services in order to generate a commission. The employee continued such conduct after being repeatedly warned that her actions were unacceptable. The employee's conduct was clearly adverse to the employer's interests as she was receiving income that she would not have been entitled to if she had followed proper procedures. Further, she put the employer at risk by switching an account without obtaining information necessary for the employer to determine that the new account holder was in good standing and credit worthy.

The commission therefore finds that in week 50 of 2001 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $12,279.00 for week 51 of 2001, and weeks 1 through 35 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 beginning in week 50 of 2001, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $12,279.00 to the Unemployment Reserve Fund. The initial benefit computation (Form UCB-700) issued on December 12, 2001, is set aside.  If benefits become payable based on work performed for other employers a new computation will be issued as to those benefit rights.

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 September 6, 2002
peretje . urr : 132 : 1 : MC 689

David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did speak with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated he had no strong recollection of the employee. The commission does not find the employee's explanations for her actions credible in light of the warnings she received and the fact that her actions clearly benefited her financially.

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.


Note: The decision is reproduced here as affected by a technical corrective amendment issued on September 20, 2002.

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uploaded 2002/09/13