HAROLD MCLEAN, Employee

GENESIS BEHAVIORAL SERVICES INC, 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 about six years and two months as a staff assistant for the employer, a behavioral health services agency that operates a detoxification center. His last day of work was on August 20, 2003 (week 34).

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's employment.

In the past, the employee had been warned about sleeping on the job. The employee was aware that the employer did not want him to fall asleep because he had to monitor clients at the facility. If clients are not monitored or observed there could be serious consequences to the clients in the case of a medical emergency. The clients can have seizures and diabetic clients can have their own problems.

On August 14, 2003, the employee was the only worker monitoring the clients. The employee's co-worker observed him sleeping. She knocked on his window, and he woke up. She returned on two more occasions and observed him sleeping, and woke him up. The co-worker decided to write this up because he had been sleeping occasionally and was unsafe. The employee agreed he had been sleeping and that he would just nod off for a few minutes. When his co-worker tapped at the window he would wake up and move around. The employee knew some of the clients personally who might go into withdrawal and he had on occasion caught clients going into withdrawal. While he would occasionally nod off, he asserted he still monitored his clients to make sure their vitals were good, and that he was a light sleeper.

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 employer argued that the employee's discharge was for misconduct connected with his work. The commission agrees. While the employee's last warning for sleeping had been in the remote past, the employee admitted that he knew why he was not supposed to sleep. The employee testified that he would occasionally sleep, despite the fact that he knew that he was to monitor clients for health problems. The employee was the only person monitoring the clients. While dozing off once during a shift might not amount to misconduct, the employee in this case dozed off three times. He was woken by his co-worker yet he took no steps to prevent dozing off again. The employee did not indicate that there were any mitigating factors that caused him to sleep on his last day of work. If fact, the employee suggested that he routinely dozed off but did not think it was a big deal because he was a light sleeper and he "never had anyone on my shift die." The commission finds that the employee's repeated instances of sleeping while on duty, given the responsibility of his job and the fact that he took no action to remain awake despite the fact that his co-worker had to keep waking him up demonstrated such a wilful and substantial disregard of the employer's interests as to constitute misconduct connected with his work.

The commission therefore finds that in week 34 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 $5,382.00 for weeks 35 through 52 of 2003, and weeks 1 through 8 of 2004, 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.

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 34 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. Department records reflect that the employee has requalified for benefits as of week 1 of 2004. The employee is required to repay the sum of $5,382.00 to the Unemployment Reserve Fund.

The initial benefit computation (UCB-700) issued on August 25, 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.

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 7, 2004
mcleaha . urr : 145 : 1 MC 659.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found the employee to be a very credible witness. The ALJ also found the employee credible, when he said he was just nodding off and that this was not the same as sleeping. Further, the ALJ noted the employer did not demonstrate that there were problems that occurred because the employee nodded off. The commission found credible the testimony of the employee's co-worker, who indicated she woke the employee on three occasions on the night in question. The employee admitted to nodding off, and indicated that he did not consider this to be a big deal. The commission found that the number of instances of sleeping, and the employee's failure to take steps to prevent repeated instances of sleeping amounted to misconduct connected with his work.

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uploaded 2004/05/12