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

DONALD W. HOBSON, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03610025MW


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 four years as a building service helper for the employer, a school district. The employee was absent as of September 6, 2003 (week 36) because he was arrested and incarcerated for failing to keep up with payment obligations imposed by a prior conviction.

Immediately upon the employee's incarceration, he requested an unpaid emergency leave from the employer. The employer did not grant the leave request and notified the employee of his discharge for absenteeism by certified letter. The letter was delivered to jail where the employee was still incarcerated on September 27, 2003 (week 39).

Wis. Stat. § 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

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.

Under the legal standard set forth in Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), mere proof of absence, however frequent, does not create a presumption of misconduct. In determining whether an employee's absences constitute misconduct, the courts and the commission have held that misconduct will not be found if the absences are for valid reasons and are promptly reported to the employer. PPG Industries v. DILHR & Reynolds, Case No. 161-399 (Dane Co. Cir. Ct., Feb. 7, 1979); Ramlow v. Power Dispatcher's Equipment Co. & Ind. Comm., Case No. 107-419 (Dane Co. Cir. Ct., Mar. 2, 1962).  Generally, the commission has held that absences due to incarceration are not for valid reasons if the incarceration is due to the employee's fault. Hyler v. Regal-Beloit Corp., UI Dec. Hearing No. 97002837JV (LIRC August 27, 1997). Further, in Hyler, the commission held that:

The standard for evaluating fault is whether the employe wilfully and intentionally started the chain of events which led to his being unavailable for work. The end result must be directly related to the beginning of the course of conduct. Schweikert v. Ganton Technologies, Inc., UC Hearing no. 91-606281RC (LIRC Mar. 24, 1992).

In Schweikert, the commission specifically found that a claimant's failure to pay a fine for a charge that occurred prior to his employment resulted in the foreseeable consequence of incarceration and that the employee was totally responsible for both the act and the consequence. Schweikert v. Ganton Technologies, Inc., UI Dec. Hearing No. 91606281RC (LIRC March 24, 1992).

Like the claimant in Schweikert, the employee in this matter knowingly failed to pay a fine and this failure was the cause of his incarceration. The commission finds him responsible and this fault resulting in appreciable absence from work constitutes misconduct connected with the employment.

Since the employee was discharged for misconduct connected with his employment, he was not eligible for the $6,006 in unemployment insurance benefits that he received for weeks 42 of 2003 through 15 of 2004.

Wis. Stat. § 108.22(8)(c) provides that the department shall waive recovery of overpaid benefits, if the overpayment occurred as the result of departmental error, without fault by the employer, and was not caused by the claimant's fault, false statement or misrepresentation.

The next issue is whether the employee must repay the overpaid benefits.

The benefits were paid to the employee as a result of the appeal tribunal decision, finding that his discharge was not for misconduct connected with his employment. The overpayment is caused by the commission's reversal of that decision due to a differing legal interpretation. The overpayment is not due to department error and, therefore, the overpaid benefits must be repaid.

The commission therefore finds that in week 39 of 2003, the employee was discharged for misconduct connected with the work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $6,006, for which the employee was not eligible and to which the employee was not entitled, within the meaning of section 108.03(1) of the statutes and that the entire amount must be repaid to the department because the overpayment was not because of any error by the department and/or was caused partially or wholly by the employee, within the meaning of section 108.22(8)(a) and (c) of the statutes.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 39 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 $6,006 to the Unemployment Reserve Fund.

The initial Benefit Computation (Form UCB-700), issued on October 14, 2003 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed May 28, 2004
hobsodo . urr : 150 : 1  MC 605.091

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not consult with the Administrative Law Judge (ALJ) regarding witness credibility and demeanor because the commission's reversal was not based upon a differing assessment of witness credibility. Instead, the commission reversed the ALJ's decision because it reached a different legal conclusion when applying the law to the facts found by the ALJ.

cc: Christopher R. Smith


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