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

RITA J SCHULTZ, Employee

MARQUARDT MEMORIAL MANOR INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03004473JF


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 nine years for the employer, a residential facility for the elderly, the last four years as a bath aide. The employee was discharged on May 14, 2003 (week 20).

The issue is whether the employee's discharge was for misconduct connected with her employment.

On the employee's last day of work, she left an incapacitated elderly resident alone for two minutes in a bathtub which was filling with water while she went to another wing of the facility to talk to another resident.

The employer's handbook (exhibit #1), a copy of which the employee received when she was first hired and again on April 12, 2002, states that employees are required to "check and control water temperature for residents entering the tub/shower," and to "never leave a resident unattended in the shower/tubrooms;" and that failure to abide by these requirements will result in disciplinary action, up to and including termination.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 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 employee, 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 employee'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.

Knowledge of the requirements of the employee's handbook should be imputed to the employee. To conclude otherwise would permit an employee to escape responsibility for violating her employer's work rules simply by failing to read the handbook. Furthermore, the commission finds it implausible that someone who has worked in a nursing home setting for nine years would believe that it was safe or acceptable to leave an incapacitated elderly resident alone in a filling bathtub as long as the whirlpool jets weren't operating, as the employee appears to be claiming here.

In addition, whether actual harm came to the resident is not the proper consideration. It is the fact that the resident was exposed to the risk of harm as a result of the employee's actions that is significant. See, e.g., Thomas v. San Camillo Inc., UI Hearing No. 01608885MW (LIRC May 15, 2002); Jackson v. Snap On Tools MFG Company, UI Hearing No. 99607424MW (LIRC Feb. 24, 2000)(misconduct may be found for even a single instance of sleeping for employees with jobs in which one of the inherent responsibilities is to be alert and a failure to do so would create an immediate threat to the safety and welfare of persons and property); Washington v. LIRC and Meritus Education Resources Co., Case No. 97-CV-010214 (Milw. Co. Cir. Ct., May 15, 1998) (misconduct found for a single incident of sleeping where employee responsible for a class of four- and five-year-old children).

Finally, the commission has consistently held those who provide direct patient care in nursing homes or other comparable facilities to a very high standard due to the fragile and vulnerable nature of the population they serve. Opara v. Marian Franciscan Center, Inc., UI Hearing No. 02611358MW (LIRC May 30, 2003). The employee failed to satisfy this standard here.

In the commission's opinion, the employee's actions here demonstrated an intentional and substantial disregard of her duties and obligations to the employer, and justify a conclusion of misconduct even in the absence of prior warning.

The commission therefore finds that, in week 20 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 the amount of $3,951 for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1), and that waiver of this overpayment is not merited since the initial award of benefits was not based on department error but instead on a differing interpretation of the applicable law.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 20 of 2003, 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 $3,951 to the Unemployment Reserve Fund.

Dated and mailed February 10, 2004
schulri . urr : 115 : 1  MC 610.25

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission conducted a credibility conference with the administrative law judge. The administrative law judge did not conclude that the employee was unaware that her conduct violated the employer's work rules, but based his decision instead on his conclusion that, although serious, this work rule violation was not sufficiently egregious by itself to justify the discharge of a nine-year employee with a positive work record. The commission's reversal of the administrative law judge's decision was not based on its disagreement with any of his credibility determinations, but instead on its conclusion that the employee's conduct was sufficiently egregious to support a conclusion of misconduct.

cc: Zinzendorf Hall, Inc.


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