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

KATHRINA D CHESSER, Employee

AMERITECH SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03606265MW


On June 27, 2003, the Department of Workforce Development issued an initial determination which held that the employee's employment was suspended but not for good cause connected with that employment, under Wis. Stat. § 108.04(6). The employer filed a timely request for hearing on the adverse determination, and hearing was held on August 4, 2003 in Milwaukee, Wisconsin before a department administrative law judge. On August 7, 2003, the administrative law judge issued an appeal tribunal decision holding that the employee had been discharged, but not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5). The employer filed a timely petition for commission review of the adverse 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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three years as a service representative for the employer, a telecommunications provider. The employer suspended her (pending discharge) on June 12, 2003 (week 24), and the issue is whether the suspension and discharge were for misconduct for unemployment insurance purposes. Under the narrow circumstances of this case the commission concludes that they were, and so reverses the appeal tribunal decision.

On August 1, 2001, the employee made a purchase at an area grocery store using an unknown person's credit card. She signed that person's name on the credit card receipt, and that was a Class C felony in Wisconsin, specifically forgery. The employee pled guilty to the charge, resulting in a January 4, 2002 conviction and a subsequent sentence of four years in prison, with the sentence stayed conditional upon the employee's satisfactory completion of three years' probation. The employee at no time informed the employer of any of these proceedings or of the actual conviction itself.

This failure by the employee violated one of the employer's work rules: "Any employee charged with any crime, for conduct done on or off the job, must report the criminal charge to his supervisor immediately upon returning to work. Failure to report any criminal charge for conduct done on or off the job, will result in disciplinary action, up to and including dismissal." The employee conceded having received a copy of the employer's work rules, including the relevant rule quoted immediately above. The employer's records indicate that the employee never acknowledged having read the rules; the employee, per instructions from her collective bargaining representative, had refused to sign the form acknowledging that she had received, read, and understood those rules.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The employee's failure to inform the employer of the criminal matter meets this standard. First, the commission holds the employee to knowledge of the rule requiring that she inform the employer of the criminal matter. The employee conceded that it was her responsibility to have read and understood those rules, and she may not avoid responsibility for following those rules by intentionally failing to read them. Second, the employer had a valid reason for the work rule in question. Its employees have access to information regarding customers' accounts, and the employer must be able to assume that its employees are able to deal with that information ethically and legally. That assumption is in question where, as here, an employee has fraudulently used an unknown person's credit card. The commission notes that this decision is limited to its facts, that is, where the criminal matter in question is obviously related to the employee's employment. Had the criminal matter in question been for a minor offense such as disorderly conduct, for example, the outcome in the case likely would have been different.

The commission therefore finds that, in week 24 of 2003, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employee was paid benefits in the amount of $329.00 per week for each of weeks 25 of 2003 through 4 of 2004, totaling $10.528.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not appropriate under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employee fault as provided in Wis. Stat. § 108.04(13)(f), yet it also was not the result of departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2003, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee must repay $10,528.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits other wise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed May 4, 2004
chesska . urr : 105 : 1  MC 687

/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 case. The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Rather, as a matter of law, the commission does not believe the employee can evade responsibility for the work rule in question by intentional ignorance of that rule.

cc: 
Ameritech Services, Inc. (Hoffman Estates, IL)
James B. Schmidt


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