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

TIMOTHY MOTSCHMAN, Employee

FAMILY FORUM INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03200794EC


An administrative law judge 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.

Based on its initial review of the record, the commission ordered further hearing on the merits of the case. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judges at the initial and remand hearings. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a preschool, for three years, most recently as a bus driver. His last day of work was March 26, 2003 (week 13).

On February 15, 2001, the employee signed a background information disclosure form on which he was asked if he had any criminal charges pending against him or was convicted of any crime anywhere, including in federal, state, local, military and tribal courts. An "x" appears in the "no" box. However, the employee had prior convictions for arson and battery. The employer subsequently became aware of the employee's criminal background and asked him why he had marked the "no" box on his background disclosure form. The employee denied having answered "no" to the question, and stated he left it blank. The employer did not accept this explanation and discharged him for falsifying the form.

The issue to be decided is whether the employee's discharge was due to misconduct connected with his 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 explained that his wife filled out the form for him and that he asked her to leave the question blank. The employee testified that he was asked about his criminal background during the interview, and admitted to it at that time. The commission does not find this to be credible. The "x" which appears in the "no" box to the question at issue matches the handwriting used on the rest of the document, and the commission believes it was made by the same person who filled out the rest of the form, either the employee or his wife. Further, if the employee or his wife did not put the check mark in the "no" box, a question arises as to who did. While during the credibility conference with the commission the administrative law judge indicated that she believed the check mark was written by the employer, the commission considers it unlikely that the employer would have asked about the employee's criminal background, then checked "no" on the disclosure form after he explained that he had such a record.

Moreover, even if the commission were to credit the employee's testimony that he left the box blank so that he could explain the matter at the interview, his own testimony indicates that he only revealed one of two convictions, and then attempted to minimize or misrepresent that matter to the employer. The employee's testimony was that, when asked why he left the question blank, he told the employer that he had a fire in a home and he was not ashamed of it. The employee stated that he did not bring up the battery conviction because it had nothing to do with a child. Consequently, even if the commission could conclude that the employee did not falsify his background disclosure form, his testimony indicates that he was untruthful and evasive about his conviction record when asked.

The employer, a preschool, has a legitimate interest in determining the nature and extent of the criminal backgrounds of its workers, and it had a right to expect the employee to answer the question honestly. The employee's actions in falsifying information regarding his criminal background evinced a wilful and substantial disregard for the employer's interests.

The commission, therefore, finds that in week 13 of 2003, the employee was discharged for misconduct connected with his employment, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in weeks 17 through 52 of 2003 and weeks 1 through 7 of 2004 in the total amount of $6,307.00, for which he was not eligible 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 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 13 of 2003 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. He is required to repay the sum of $6,307.00 to the Unemployment Reserve Fund. The benefit check for week 16 of 2003 was forfeited. Since benefits are now denied for such week, it cannot be applied to the forfeiture. The amount restored to the forfeiture balance is $120.00.

The initial benefit computation (UCB-700) issued on July 8, 2003, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

Dated and mailed February 27, 2004
motscti . urr : 164 : 1 MC 630.20

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission conferred with the administrative law judge who presided at the original hearing about her impressions of witness credibility and demeanor. The administrative law judge found the employee's version of events to be credible. However, for the reasons set forth in the body of the decision, the commission disagrees. The commission also talked to the administrative law judge who presided over the remand hearing in order to ascertain her impressions of the credibility of the employee's wife's testimony that she filled out the application for the employee but deliberately left the question blank. While the administrative law judge indicated the witness was very forceful in her testimony, given all the circumstances in the case the commission rejects that testimony as incredible.

cc: Attorney Kenneth A. Knudson


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