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

JERRY R OLSON, Employee

ALLTRUX LEASING & PACLEASE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02007848WK


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 39 of 2002, 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 the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $2,849 to the Unemployment Reserve Fund.

Dated and mailed May 15, 2003
olsonje . usd : 115 : 9   MC 697

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

The employee worked four years as a maintenance mechanic for the employer, a truck sales and service business.

It is undisputed that the employee had received a copy of the employer's handbook and was aware as a result that falsification of time worked was grounds for immediate discharge; that he left work for approximately 20 minutes on Friday, September 27, 2002, to run a personal errand and didn't punch out on his time card; that Kelly Houk, his supervisor, happened to be present at the employee's work location at that time; that his supervisor had never given him permission to run a personal errand on work time; and that the employer discharged him as a result for time theft.

The commission has always placed special emphasis on the integrity of the time/payroll system. See, e.g., Morales v. Prime Care Health Plan, UI Hearing No. 97605882MW (LIRC Aug. 26, 1998) ("While the employee was only 19 minutes late for work, which might not amount to misconduct, the commission considers accurate time reporting to be very serious.The commission finds that the employee's falsification of his time card amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work."); Poindexter v. Northwest General Hospital, UI Hearing No. 98606560MW (LIRC Jan. 27, 1999) (the fact that the employee knowingly recorded on his time card that he left work at 2 pm even though he actually left at noon is intentional falsification of his time record and an intentional violation of standards of behavior the employer has a right to expect).

The commission has also consistently held that an employer must show that the employee intended to violate the integrity of the time/payroll system in order to establish misconduct. (Ostrowski v. Royalton Manor, UI Hearing No. 012012013EC (LIRC Dec. 21, 2001) (misconduct by time theft not demonstrated where a 23-year employee had arrived early for work, not clocked in for these early hours, and had run a short personal errand for a comparable amount of time later in the day without clocking out); Cornils v. Ultra Mart Foods, Inc., UI Hearing No. 02402775AP (LIRC March 11, 2003)(misconduct by time theft not demonstrated where a 20- year employee, to avoid overtime costs for an employer with financial problems, did not record extra hours in week worked, and compensated by recording full time hours the next week but working fewer).

Here, as opposed to Ostrowski and Cornils, supra, the employee did not make up to the employer the time spent on personal errands. Moreover, the commission agrees with the administrative law judge that the preponderance of the credible evidence does not support a conclusion that the employer actually condoned the employee's practice or that it was reasonable for the employee to so conclude.


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uploaded 2003/05/27