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

MARGARET A HALLET, Employee

SELECTSTAFF SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608317MW


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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for over a year as a caregiver for a staffing agency, which provided care to the elderly and disabled. Her last day of work was August 21, 2001 (week 34), when she was discharged.

During most of her employment, the employee worked in the home of a single client. In July, she began keeping a parallel log to the official client care log where she and other caregivers at the house kept communications that they intended to conceal from the employer. The notes included complaints from with the client's son regarding the number of calls he was receiving from the employer requiring him to deal with rodents, air conditioning, and other household concerns. It included instructions not to tell the employer of these problems so as not to aggravate the client's son further. The log also recorded the son's comments concerning moving his mother to a nursing home and the likely impact of this on their jobs. The case manager became aware of this book and the employee was discharged.
The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constituted misconduct connected with the 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."

Employee admits that she knew information about the client was to be kept in the client log which was regularly reviewed by the employer. However, she argues that these notes were unrelated to the client's care and were more like the general household notes placed by caregivers on the refrigerator. They were intended as a private communication among the caregivers for this client. It is clear from the notes themselves that they were placed in a separate log for the sole purpose of keeping them from the employer. They dealt with issues where the employee felt the interests of the client's son differed from that of the employer. The employee was attempting quite explicitly to placate the son so that she could retain her assignment with this client and prevent the client from being moved to a nursing home. While the employee's actions had not yet placed the client in any danger, there was no way of knowing when the employee's interests might in the future have been at variance with the client's. Her decision to screen what information would be relayed to the employer concerning the client's environment placed the employer's ability to provide quality care for this client at risk.

The commission concludes that the employee's actions amounted to misconduct. She substituted her judgment for the employer's about the rodents and the air conditioning and in so doing put her interests in conflict with the employer's need for complete information.

The commission therefore finds that in week 34 of 2001, the employee was discharged from her employment and that the discharge was 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 $11,134 for weeks 34 of 2001 through week 8 of 2002, and weeks 11 through 18 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 34 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 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 $ 11,134 to the Unemployment Reserve Fund.

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 May 30, 2002
hallema . urr : 178 : 1   MC 630.07  MC 689 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing. While the ALJ credited the employee's statements that she did not place her comments about the rodents and the air conditioner in the main log because they did not relate to patient care, the commission reaches a different conclusion. The employee deliberately kept this log in a separate location so that the employer would not learn what was contained in it. While the employee may not have acted with any intent to cause harm to the client, her actions were contrary to the interests of her employer in providing complete and appropriate care. As such they amounted to misconduct.

cc: Marybeth Herbst


Appealed to Circuit Court.  Affirmed December 27, 2002.  [Circuit Court decision summary]

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