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

GUSTAVO GARCIA, Employee

PACKERLAND PACKING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03403415AP


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 for four days for the employer, a hotel in California. His last day of work was July 25, 2003 (week 30), when he was discharged for falsifying his job application. The employment application, asked the question in English, "Have you been convicted of any offense or completed a period of incarceration within the past ten (10) years?" The employee answered "no." The employee's first language is Spanish. The job application included the message that "any false or misleading statements made by me on this application will be sufficient cause for . . .my immediate dismissal." When the human resource director received the results of the employee's criminal background check, which revealed convictions for three misdemeanors since 1995, for which he was incarcerated, he was discharged for falsifying his job application.

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

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 employee maintained at the hearing that he did not understand the meaning of the word "incarceration", and believed that the question only applied to felony convictions. The commission does not find the employee's claims to be credible. The employee chose to fill out the application in English. The employee's application indicates that he is able to respond accurately to the other questions presented on that form. Further, if the employee had any difficulty understanding any question that was asked of him, it was his responsibility to clarify what information was being requested rather than simply check "no." However, as previously indicated, the commission does not credit the employee's claim that he did not understand what was being asked of him. The employer had a right to an honest response to the question regarding the employee's prior convictions. The employee's failure to provide such honest response demonstrated an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 30 of 2003 the employee was discharged from his employment and for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $661.00 for weeks 31 through 33 of 2003, all of which is set forth on another decision, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

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 30 of 2003, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $661.00 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 otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed May 6, 2004
garcigu . urr : 132 : 1 : MC 630.20

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding witness credibility and demeanor. The ALJ indicated that she found the employee credible that he was unable to read English well and did not understand the term "incarceration." The record reflects, however, that the employee was able to respond to other questions asked of him, that the employee never alerted the employer that he did not understand the question, and that the employee was able to communicate at the hearing in English. The commission rejects the employee's self-serving claim that he did not understand what was being asked of him.

cc: Ca-Omni Los Angeles Hotel


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uploaded 2004/05/10