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

URSULA T HAYES, Employee

BEL RESOURCE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02604698MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Paragraph seven of the appeal tribunal's Findings of Fact and Conclusions of Law is deleted and the following is substituted therefor:

The employee's last day of work with the client was April 25. The morning of April 26, the employer left a message with the employee to the effect that the employee was not to return to the client. There is a dispute as to what the employee and employer subsequently discussed in follow-up telephone calls, but the employer's staffing specialist testified that the employee had not been terminated from the service, only removed from the client. The employer's calendar for the employee shows an offer to the employee on Tuesday, April 30, five days after the employee had been removed from the client. Finally, the same calendar has the annotation "DNU Global-falling asleep-not keeping up" across the boxes for April 25-27. Given these factors, the employer cannot be held to have discharged the employee from employment with the employer because the employee was allegedly sleeping on the job. The alleged sleeping on the job therefore cannot be the basis for a finding of misconduct, since the alleged misconduct must be the reason for the discharge.

A finding of misconduct would not be warranted, even if the employee were found to have been sleeping on the job.

The employee testified that she had been up the previous night, all night, with a sick child. This makes the employee's dozing off an inadvertent instance of falling asleep, and the commission has regularly held that such is not misconduct. Specifically, not every instance of sleeping on the job evinces the requisite intent to harm an employer's interests which is necessary for a finding of misconduct. Henderson v. Polaris Industries, Inc., UI Dec. Hearing No. 98201981EC (LIRC 4-29-99). While sleeping on the job is a very serious matter, it will not be considered misconduct absent some evidence that it was done in deliberate disregard of the employer's interests or that it amounted to negligence of a certain degree or recurrence. Neubauer v. Milwaukee School of Engineering Corp., UI Dec. Hearing No. 96607193MW (LIRC 2-18-98).

A 1988 Milwaukee County Circuit Court case also suggests that more is necessary for a finding of misconduct than occurred in the instant case. In Aiken v. Village of Elm Grove, UI Dec. Case No. 758-525 (Milwaukee Cty. Cir. Ct. 3-10-88), the court affirmed the commission's finding of misconduct for sleeping on the job. The finding of misconduct was upon the third occasion, which occurred when the employee drove his front end loader into a secluded wooded area. The court phrased the matter as the employee's having gone to sleep as opposed to falling asleep. Given the employee's driving of the loader to a secluded wooded area, the employee's actions in that case were deemed intentional.

The commission distinguishes that situation (where an employee intentionally hides him or herself in order to sleep and not be caught) from the situation where an employee inadvertently falls asleep. In the present case, the employee allegedly dozed off while standing at the beginning of the production line and, given the circumstances, that would have to be considered inadvertent. In a similar case, where an employee was found dozing while standing and not leaning against anything (except holding onto her broom), the commission found that the discharge was not for misconduct. See Gilles v. Menard, Inc., UI Dec. Hearing No. 99200920EC (LIRC 10-20- 1999).

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed December 18, 2002
hayesur . umd : 105 : 8  MC 665.01  MC 659.02

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


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