SHIRLEY  M  LE BRECK, Employee

HOME INSTEAD SENIOR CARE NO 149, Employer

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:

The employee worked for over three years as a caregiver/companion for clients of the employer, a non-medical in-home care provider. Her last day of work was June 4, 2003 (week 23).

On May 16, 2003, the employee contacted the employer's recruitment coordinator and informed her that she had fallen asleep while sitting with a client. The client had Alzheimer's disease and had problems with wandering. The employee had recently returned to work following an injury and had been taking medication containing a narcotic for the pain. The employee indicated that she would not take the medication in the future until she was done with work. The recruitment coordinator explained how it was important that the employee stay awake. On May 20, the recruitment coordinator discussed the situation with the employer again and offered suggestions to help the employee stay awake.

On June 4, the employee telephoned the recruitment coordinator and informed her that she had fallen asleep while sitting with the client on May 28. On June 5, 2003 (week 23), the employer discharged the employee.

The issue to be decided is whether the employee was discharged for misconduct connected with her work for the employer. 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' with in the meaning of the statute."

The commission finds that the employee did not intend to fall asleep on May 16 or May 28 and therefore did not demonstrate willful disregard of the employer's interests. The commission further finds that the employee's conduct did not demonstrate more than ordinary negligence on two occasions. The employee self-reported her conduct to the employer on both occasions. The employee took steps to avoid sleeping in the future by not taking pain medication before reporting to work. The employee did not feel drowsy before falling asleep on the second occasion and therefore could not implement the employer's suggestions for staying awake. The employee and the client were locked in the home so the client would not have been able to wander out of the home.

The commission therefore finds that in week 23 of 2003, the employee was discharged but not for misconduct connected with her work for the employer within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 23 of 2003, if she is otherwise qualified.

Dated and mailed April 13, 2004
lebresh . urr : 132 : 1 : MC 659.02

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility. The ALJ indicated that he based his misconduct finding on the employee's failure to implement the employer's suggestions for staying awake, and on the belief that the employee did not consider her conduct to be serious. For reasons set forth in its decision, the commission finds that the evidence did not demonstrate that the employee intended to fall asleep.

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uploaded 2004/04/14