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

JEANNE M LAKE, Employee

OWEN AYRES & ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03002845MD


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 two weeks as a real estate specialist for the employer, a consulting engineering and architecture firm, and was discharged on January 20, 2003 (week 4), for failing to have a driver's license which would permit her to drive on employer business.

The issue is whether the employee was discharged for misconduct connected with her employment.

The employee accepted the position on or around December 5, 2002, and her first day of work was January 7, 2003. The employee was aware when she accepted the position that she would be required to drive from her home office in Wisconsin Rapids to the employer's home office in Eau Claire one day each week, and eventually would be required to drive to remote locations to meet with property owners.

The employee's driver's license was suspended on September 25, 2002, because of a DUI (driving under the influence) conviction. Thereafter, at all times relevant here, the employee had an occupational license which allowed her to drive between the hours of 7:30-8:30 a.m., 11:30 a.m.-12:45 p.m., and 1:00 p.m.-6:30 p.m. in order to carry out duties as a real estate specialist for the state Department of Transportation, her previous position, and her duties as a homemaker.

The employer did not become aware of the employee's driving restrictions until it learned from its insurer that the employee did not have an unrestricted driver's license. The employer questioned the employee about this in a January 10, 2003, email.

The employee did not apply to the Department of Transportation on or before January 20, 2003, for an updated occupational license.

On the days she was scheduled to be in the Eau Claire office, the employee was expected to arrive around 8:00 a.m. It takes longer than an hour to drive from Wisconsin Rapids to Eau Claire. The employee drove to Eau Claire for work with the employer on two days during the period of her employment.

On January 7, 2003, her first day of work, the employee signed a document which states as follows, as relevant here:

VEHICLE AGREEMENT FOR EMPLOYEE USE OF COMPANY-OWNED VEHICLES AND PERSONAL VEHICLES USED FOR COMPANY BUSINESS

I acknowledge that I currently hold a valid driver's license. I acknowledge that any accident and/or citation which I receive (either on or off the job), which may result in revocation, suspension, or restriction of my driver's license, must be reported to my supervisor at the next opportunity, but no later than the next working day.

I acknowledge that Ayres Associates' insurance provider may check my driving record as a condition of being permitted to drive a company vehicle or personal vehicle for company business. I understand that a negative change in the status of my driving record may result in the revocation of the privilege of driving a company-owned vehicle or a personal vehicle for company business. Dependent on the nature of my position and availability of other licensed staff to function as drivers, this revocation may result in dismissal. .

I maintain adequate personal vehicle insurance.By meeting these requirements and those listed above, I may use a personal vehicle for company business.

When the employee was present in the Eau Claire office on January 17, she discussed the restrictions on her license with Jamie Meyer, the employer's employment/recruitment specialist.

The commission concludes that the evidence of record shows that the employee attempted to hide the status of her driving privileges from the employer, even though she was aware that the employer considered it an important matter. She indicated on the form she filled out on her first day of work that she had a valid driver's license. A suspended license, or an occupational license relating to a job she no longer held, is not a valid driver's license. The fact that an occupational license is valid only in relation to a particular job, not to working in general, is reflected in the restriction language on the employee's license which is specific to the jobs she held at the time the restrictions were imposed.

The employee explains that she just forgot about the restrictions on her driving privileges, but the commission does not find this explanation credible, particularly given the fact that the employee admits she was appealing her license suspension at the time. Moreover, even if the employee had forgotten about her restrictions, she was aware as of January 10, 2003, when she received an email from Ms. Meyer (page 5 of exhibit A) that the employer had been informed that she had a revoked license and was requesting proof of a valid license and documentation of any restrictions. Despite this, the employee took no action to change the restrictions on her license prior to driving to Eau Claire on January 17. She violated her restrictions in making this drive as well as her previous one to Eau Claire on employer business. It is reasonably inferred from the record that a suspended license without a properly updated occupational license affected the employee's insurability, which in turn could affect the employer's liability in regard to acts occurring while the employee was driving on employer business.

The commission concludes that the employee engaged in an intentional deception when she failed to disclose the status of her driving privileges to the employer prior to her first day of work, and when she indicated on her first day of work that she had a valid driver's license. The commission also concludes that the employee failed to act with reasonable diligence to ameliorate this deception by promptly obtaining an updated occupational license on or after January 10.

Trust is an essential component of the employment relationship. The commission and the courts have been consistent in holding that an employee's dishonesty in the course of this employment relationship supports a conclusion of misconduct. See, Gregory v. LIRC and MPS, Case No. 97-CV-001333 (Cir. Ct. Milw. Co. Dec. 4, 1997) (misconduct found where employee represented to employer on the date of absence that she would not be able to report to work due to a family emergency when in fact she engaged in election activities that day); Bohman v. HCI, Inc., UI Hearing No. 99601023MW (LIRC June 22, 1999) (misconduct found where employee represented to employer that unable to participate in required training because of family emergency when in fact employee had traveled to Phoenix to vacation with family); Wise v. ABF Freight System, Inc., UI Hearing No. 03002541MD (LIRC Dec. 4, 2003).

The commission therefore finds that, in week 4 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 $12,831 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 4 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 $12, 831 to the Unemployment Reserve Fund.

Dated and mailed March 16, 2004
lakejea . urr : 115 : 1  MC 630.07

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did confer with the administrative law judge before reversing her decision. The hearing in this matter was held by telephone, so the administrative law judge, like the commission, did not have the opportunity to observe the demeanor of the witnesses. The commission does not agree with the administrative law judge, for the reasons explained in its decision, that the evidence of record supports a conclusion that the employee simply forgot about her driving restrictions and did not intend, as a result, to mislead the employer in this regard. The commission's reversal was based on a different factual finding in this regard as well as a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.


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uploaded 2004/03/18