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

MARTHA J STOKES, Employee

THE LUTHERAN HOME INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02608851MW


On September 27, 2002, the Department of Workforce Development issued an initial determination which held that the employee quit her employment, but not for a reason allowing for immediate eligibility for unemployment insurance. The employee filed a timely request for hearing on the adverse determination, and hearing was held on October 16, 2002 in Milwaukee, Wisconsin before a department administrative law judge. On October 23, 2002, the administrative law judge issued an appeal tribunal decision modifying and reversing the initial determination. Both the employee and the Department of Workforce Development filed timely petitions for commission review of the appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately eight months, most recently as a certified nursing assistant, for the employer, a long-term health care facility. Her employment ended as of September 9, 2002 (week 37), and the issue is whether the separation was for a disqualifying reason for unemployment insurance purposes. The commission concludes that it was not, and so reverses the appeal tribunal decision.

Several month after having begun her employment with the employer, the employee received a July 29, 2002 letter from the state's Department of Health and Family Services indicating that a competency test the employee previously took (to gain certification) had been "ineffectively administered, according to state statutes and federal regulation." The letter stated that the employee would have to retake and pass an approved nurse aide competency test by August 30, 2002. If the employee did so, her name would remain on the Wisconsin Nurse Aide Directory. The letter stated that, if the employee failed to pass the test by August 30, her name would be removed from the Directory. The employee subsequently was told by a representative of that department that the test the employee took did not meet state standards.

The employee arranged to retake the test, which she did on or about August 17. She passed the written portion, but failed the physical portion (which apparently included giving a patient a bath). The employee asked to be able to retake the test, but received word on Friday, September 6, that the state was not allowing for retakes, that the employee would have to repeat the class (which served as the precursor for the competency test the employee failed).

On Monday, September 9, the employee met with the employer's Director of Nursing and said she would be quitting the employment because she was no longer on the registry (that is, that she was no longer certified). The director told the employee to go to the employer's Human Resources Department, that the employer could remedy the matter. At this point, the director believed it was a simple matter of renewing the employee's certification. The employee showed the director the July 29 letter the employee had received; employer personnel checked into the matter further and found out that it was more serious than they had initially believed. The director told the employee it would be better for the employee to resign, in order to be eligible for rehire once the situation was resolved. The employee did so.

Wisconsin Stat. § 108.04(1)(f) provides, in part, as follows:

If an employee is required by law to have a license issued by a governmental agency to perform his or her customary work for an employer, and the employee's employment is suspended or terminated because the employee's license has been suspended, revoked or not renewed due to the employee's fault, the employee is not eligible to receive benefits until 5 weeks have elapsed since the end of the week in which the suspension or termination occurs or until the license is reinstated or renewed, whichever occurs first. The wages paid by the employer with which an employee's employment is suspended or terminated shall be excluded from the employee's base period wages under s. 108.06(1) for purposes of benefit entitlement while the suspension, revocation or nonrenewal of the license is in effect.

There is no question but that the employee's employment was terminated because the employee's license had been suspended. The employer directed the employee to quit her employment while the matter was getting straightened out; this makes the separation from employment at the impetus of the employer. As such, it was a termination within the meaning of Wis. Stat. § 108.04(1)(f).

The evidence does not establish fault on the employee's part, however, for the suspension of the employee's license. "Fault" in the context of this statute means conduct which is blameworthy, worthy of censure, or negligent. The employee only failed one portion of a required examination, and there is no evidence to suggest that the employee's failure was due to negligence or other blameworthy conduct.

The Department of Workforce Development has argued that Wis. Stat. § 108.04(1)(f) is entirely inapplicable because the employee essentially never held a certified nursing aide license. The department relies upon evidence to the effect that the employee, based upon the inadequacy of her training, should not have received certification in the first instance. The language of the documentation from the Department of Health and Family Services does not support this interpretation, however. The employee in fact was certified and worked for several months pursuant to that certification. In addition, the letter from that department states that, if the employee were to pass an approved test by a date certain, her name would remain on the directory (of individuals with certification). The clear implication of this language is that the employee's certification was in effect and would remain in effect with the successful taking of a certification test by August 30. For these reasons, the commission believes the case is properly decided under Wis. Stat. § 108.04(1)(f).

The commission therefore finds that, in week 37 of 2002, the employee's employment was terminated by the employer because a license issued by a government agency required by law in order to perform the employee's customary work for the employer, had been suspended, but not due to the employee's fault, within the meaning of Wis. Stat. § 108.04(1)(f).

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 37 of 2002, if she is otherwise qualified.

Dated and mailed January 30, 2003
stokema . urr : 105 : 3  AA 130

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, as a matter of law the evidence was insufficient to establish employee fault for the suspension of her nurse aide certification.


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uploaded 2003/02/10