GARY A HUETTL, Employee

THE COPPS CORP, Employer

On February 28, 2003, 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 May 14, 2003 in Wisconsin Rapids, Wisconsin before a department administrative law judge. On May 27, 2003, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employee filed a timely petition for commission review of the adverse appeal tribunal 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:

The employee occasionally was 10 to 20 minutes late reporting to work on Mondays. Nevertheless, the employee recorded on his timesheets that he always began working at his scheduled starting time of 7 a.m. In fact, every day he recorded the exact same working times, 7 a.m. to 3:30 p.m., with a 30-minute lunch break from noon to 12:30. There also were other circumstances in which the employee's reported time would not reflect his actual work but, unlike the instances where he reported late to work on occasional Mondays, the latter situations involved the employee's working beyond his stated work times. When a mechanical breakdown would occur just before lunch, for example, the employee would work through his lunch break in order to make whatever repairs were necessary. Similarly, if a problem arose at the end of the employee's shift, the employee would remain past 3:30 working on the problem, but still listed his quitting time every day as 3:30 p.m. Further, the employee's unrebutted testimony was that he often had to work through his morning and afternoon breaks as well, for the same reason. Finally, the employee worked beyond 3:30 most Friday afternoons, with the employer's knowledge. Nonetheless, the employer discharged the employee on February 12, 2003 for the falsification of his timesheets.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. Falsification of a timesheet usually meets this standard because the employee in question is actually engaging in time theft, that is, claiming time worked that the employee in fact did not work, causing the employer to pay the employee more money than the employee actually earned. That is not the present case, however, because the employee's unrebutted evidence was not only that he made up the time he was late on Monday mornings but also that the employer knew his times listed on his timesheet were not always accurate. The employer either knew or should have known that the employee's reporting of his lunch break times was not always accurate. In addition, the employer knew the employee's reported quitting time on Fridays also was inaccurate and that these two forms of inaccuracy worked to the employer's benefit.

There is no question but that the better course would have been for the employee to scrupulously and accurately list his exact work times. For the above reasons, however, the commission cannot conclude that the employee's failure was more than an instance of poor judgment made in good faith. The commission therefore finds that, in week 7 of 2003, the employee was discharged but not for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The appeal tribunal decision is reversed. Accordingly, the employee is eligible for unemployment insurance beginning in week 7 of 2003, if he is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed February 17, 2004
huettga . urr : 105 : 8  MC 630.09

/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. Rather, based upon the employee's unrefuted evidence as to his overall work schedule, the commission concludes that his failure to accurately list his starting times on the Mondays in question was poor judgment but not misconduct.

 

cc: The Copps Corp. - Stevens Point, WI 54481

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uploaded 2004/02/25