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

KENNETH W MONCRIEF, Employee

U S BANK NATIONAL ASSOCIATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02006339FL


On August 27, 2002, the Department of Workforce Development issued an initial determination which held that the employee's discharge was not for misconduct connected with his employment. The employer filed a timely request for hearing on the adverse determination, and hearing was held on December 3, 2002 in Fond du Lac, Wisconsin before a department administrative law judge. On December 6, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for com- mission review of the adverse decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately four months as an assistant branch manager for the employer, a federally chartered bank. The employer discharged him on August 6, 2002 (week 32) and the issue is whether the discharge was for misconduct for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

The reason for the discharge was the employee's alleged falsification of his employment application. The employee completed that application on May 2, 2002. The application asked, "Have you ever been convicted of a crime or placed in pretrial diversion? Are charges currently pending against you for any crime?" The application stated that a dishonest answer or an omission would result in a refusal to hire or, if hired, an immediate dismissal. He answered each question in the negative.

On or about August 5, 2002, the employer received a report from the Federal Bureau of Investigation regarding the employer's submission of the employee's fingerprints for a routine review. The report showed that in 1985 he had been convicted of petty theft of merchandise, resulting in a sentence of 17 days in jail and 18 months on probation. The record also showed a second conviction. The employer terminated the employee's employment the next day; federal banking law prohibits it from employing anyone convicted of a crime.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The commission believes the employee's failure meets this standard. First, given that the employer may not employ individuals in the employee's circumstances, the employee's failure to have listed the conviction in question easily was a substantial disregard of the employer's interests.

The critical issue in the matter is whether the employee's failure was intentional. In finding that the employee had not intentionally failed to list the convictions, the administrative law judge reasoned that the employee simply had not recalled the matters, based upon difficult times the employee had been going through at the time. The commission does not believe this explanation is sufficient to negate the most probable scenario, that the employee did recall the convictions but intentionally failed to list them on the employment application. The employee had two separate encounters with law enforcement during the time period in question, both of which resulted in convictions and one of which resulted in a jail sentence of 17 days. One does not simply forget such matters, and the employee provided no medical evidence to support his contention that depression he suffered at the time caused a lack of recall of the time period in question.

The commission therefore finds that, in week 32 of 2002, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid benefits in the amount of $322 per week for each of weeks 33 through 45 of 2002, totaling $4186, for which he was ineligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), he must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefits recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet the overpayment also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 32 of 2002, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $4186 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 other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed July 9, 2003
moncrke . urr : 105 : 3  MC 630.20

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The administrative law judge indicated that he found credible the employee's assertion that he simply did not recall the convictions, when he filled out his employment application with the employer. The commission simply cannot believe, however, that the employee could have forgotten a matter which resulted not only in a conviction, but also jail time and more than a year's probation. Finally, as indicated in the decision, the employee provided no medical evidence in support of his defense of having blocked the matters out of his mind.

cc: U S Bank National Association (Milwaukee, Wisconsin)


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