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

CALVIN D WENDT, Employee

POTAWATOMI BINGO NORTHERN LIGHTS CASINO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03200348RH


On February 8, 2003, the Department of Workforce Development issued an initial determination which held that the employee's employment was terminated because his license was suspended due to fault. The employee filed a timely request for hearing on the adverse determination, and hearing was held on March 12, 2003 in Rhinelander, Wisconsin before a department administrative law judge. On March 14, 2003, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission 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, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three and a half years as a dealer in the employer's casino. The employer discharged him on or about January 24, 2003 (week 4) because he had lost his gaming license, and the issue is whether the discharge was disqualifying for unemployment insurance purposes. The commission concludes that it was, and so reverses the appeal tribunal decision.

This case falls under Wis. Stat. § 108.04(1)(f), which governs employment in which an employee is required by law to have a license in order to perform the employee's customary work for the employer. Disqualification occurs when an 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's employment ended in week 4 because his gaming license had been suspended. The dispositive issue therefore is whether the license suspension was due to the employee's fault.

The employer casino does not itself issue its gaming licenses. The licenses are issued instead by a gaming commission which is the governing agency for the employer. Dealers must apply for and maintain current licenses in order to continue working as dealers for the casino. In his most recent application for a gaming license, the employee failed to list a misdemeanor conviction for obstruction of an officer. Following the gaming commission's discovery of the employee's omission, it held a hearing on the issue of the revocation of the employee's gaming license on the ground that the employee had failed to list the misdemeanor conviction. Specifically, the employee violated the license application requirement that applicants disclose all convictions or charges from the time of the applicant's last license application. The gaming commission ultimately revoked the employee's gaming license, concluding that his failure to list the misdemeanor conviction reflected adversely upon his honesty, integrity, and credibility, factors which go to an individual's suitability as a dealer in a casino.

The employee had two defenses in the case, both of which the commission concludes are insufficient. First, the employee argued that he thought he was only required to list felony convictions and, his conviction being only a misdemeanor, he believed he did not have to list it. At hearing before the gaming commission, however, the employee conceded that he understood the question at issue. There thus is no basis upon which to conclude that the employee was not at fault in his admittedly incorrect answer to the question regarding criminal charges and convictions.

The employee's second defense was that a co-worker with the same charge as the employee, had also failed to list the matter in her most recent application for a gaming license and she had not been suspended or discharged. The employee has not shown, however, that he and the co-worker in question were so similarly situated as to raise the inference that the employer's disparate treatment of him and the co-worker was discriminatory or otherwise violative of law.

The commission therefore finds that, in week 4 of 2003, the employee's employment was terminated by the employer because a license issued by a government agency that was required by law in order to perform the employee's customary work for the employer, had been suspended, revoked, or not renewed due to the employee's own fault, within the meaning of Wis. Stat. § 108.04(1)(f). The commission also finds that the employee was paid benefits for weeks 6-11 and 13-36 of 2003, totaling $5,774.00, 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 benefit 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 it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, if the employer is the only employer in the base period, benefits are denied beginning in week 4 of 2003 and until the license is reissued or renewed. If there are other employers in the base period, benefits are denied beginning in week 4 of 2003 and for a period of up to five weeks thereafter, or until the license is reissued or renewed, whichever occurs first. Thereafter, benefits are allowed, if there are other employers in the base period and the employee is otherwise qualified. The employee must repay $5,774.00 to the Unemployment Reserve Fund.

Dated and mailed September 18, 2003
wendtca . urr : 105 : 1  AA 130

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. The administrative law judge first reasoned that the license renewal form the employee submitted, was not in evidence. The employee conceded at the hearing before the gaming commission, however, that the form asked about all charges and convictions, and not solely felony charges and convictions. The administrative law judge also reasoned that there was no established difference between the employee's failure vis-à-vis that of the co-worker who also had not reported the matter. This fact is not dispositive; as indicated above, it also was not established that the employee's and co-worker's situations were so similar as to require similar treatment of the issue.

The wages paid by this employer shall be excluded from the employee's base period wages for purposes of benefit entitlement while the suspension, revocation, or nonrenewal is in effect. Any benefits paid for later weeks, based on the wages excluded, while the suspension, revocation, or nonrenewal remains in effect, that would otherwise be chargeable to the employer's account, shall be charged either to the fund's balancing or administrative accounts.


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uploaded 2003/09/23