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

AYANNA ROBERTSON, Employee

SAINT JOSEPHS HOME OF OUR LADY OF MT CARMEL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03602622RC


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a nursing home, for approximately four and a half years as a certified nursing assistant. The employee was discharged on March 3, 2003 (week 10).

The employer has a statutory obligation to conduct criminal background checks on its caregivers and to determine whether a particular offense is substantially related to client care. Rules promulgated by the Department of Health and Family Services spell out the process which the employer must follow, and an appendix to those rules lists specific offenses that may affect caregiver eligibility. These offenses include, but are not limited to, misdemeanor battery, battery, special circumstances, and disorderly conduct. Wis. Admin. Code ch. HFS 12.

The employer has a criminal background check policy, which provides that employees who are subject to pending criminal charges may, under certain circumstances, be suspended from employment. At the end of the policy, set apart from the rest of the text and printed in all capital letters and extra large type, is the following:

"Note: If you commit a crime or are charged with a crime during your employment, you must report the act to the human resource department immediately. Failure to do so will result in disciplinary action or discharge."

On October 17, 1999, the employee signed a form indicating she had received the criminal background check policy and was responsible for its contents. During the course of her employment the employee attended annual inservices at which the policy was reiterated. Most recently, in March or April of 2002, the employee attended an inservice involving the issue of resident abuse. The outline for this inservice covered the need to report any new criminal arrests or convictions to human resources.

On February 23, 2003, the employee was involved in an off-duty altercation which resulted in charges of disorderly conduct, resisting arrest, and battery to an officer. The employee called the employer on February 23 and 24 to report she would be absent from work, but did not mention she had been charged with a crime. The employee reported for work on February 25. She worked five hours that day, but did not mention the criminal charges to the employer. On February 27 the employer's human resource director read about the criminal charges against the employee in the local newspaper. The human resource director confronted the employee and asked her why she had not reported the matter, to which the employee responded that she did not think it was the employer's business. The employee further stated she would have told the employer eventually. On March 3, the employee appeared at court and pled not guilty to the charges against her. The employer's human resource director and administrator attended the court hearing. As the employee was leaving the hearing the administrator handed her a letter notifying her of her discharge for failing to report the charges against her.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for failing to disclose to the employer that she was charged with a criminal offense. Although the employee testified that she was unaware of the employer's policy requiring her to do so, she received a copy of the policy in October of 1999, and the matter was emphasized at annual inservices which the employee attended thereafter. Moreover, when the employer asked the employee why she had not notified it about the charges against her, she did not state that she was unaware of a requirement that she do so, but indicated that it was none of the employer's business and, further, that she would have told it eventually. In light of the foregoing, the commission believes that the employee was aware of the employer's policy, but deliberately chose not to disclose the charges against her. Given the nature of her job, and the employer's obligations under the statute, the commission believes that the employee's failure to provide the employer with the information it needed to determine whether to suspend her employment while the charges against her were pending was sufficiently serious as to rise to the level of misconduct.

The commission, therefore, finds that in week 10 of 2003, the employee was discharged for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in week 10 of 2003, and weeks 12 through 43 of 2003, in the total amount of $6,496, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

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 10 of 2003 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $6,496 to the Unemployment Reserve Fund.

Dated and mailed October 31, 2003
roberay . urr : 164 : 1 MC 617

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission conferred with the administrative law judge to obtain her impressions of the credibility of the witnesses. The administrative law judge indicated that she found all of the witnesses believable, and that she credited the employee's testimony that she did not recall the rule requiring her to disclose the criminal charges. The administrative law judge expressed doubt about the requirement that a worker notify her employer when charged with a crime. For the reasons set forth in the body of the decision, the commission does not credit the employee's testimony that she was unaware of the employer's rule, and it believes that she deliberately chose not to disclose the arrest because she did not want to risk suspension. While an employer may not discharge a worker based solely upon a criminal charge, an employer is permitted to suspend a worker based upon a criminal arrest if the circumstances are substantially related to the job.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set overpayment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


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uploaded 2003/11/03