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

WARREN G CURRY JR, Employee

AMERITECH SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04600364MW


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 almost three years, most recently as a frontline manager for the employer, a telecommunications service business. His last day of work was December 4, 2003 (week 49).

Prior to hire, on November 6, 2000, the employee completed an application for employment. The application directed the employee to provide a record of all convictions, felony and/or misdemeanor, and to certify the accuracy of his application. Yet, the employee was not accurate in his disclosure. In particular, although he specifically reported his felony conviction for possession of cocaine with intent to deliver and referenced a conviction for possession, he did not indicate that the two matters were separate, resulting in the felony conviction of possession of cocaine with intent to deliver and a misdemeanor conviction of possession of marijuana. He also did not report a misdemeanor conviction of disturbing the peace.

On November 7, 2000, the employer requested a background report for the employee, which was completed on November 10, 2000. The background check revealed the felony intent to deliver cocaine conviction, the separate misdemeanor possession of marijuana conviction and the disturbing the peace conviction. On January 29, 2001, the employer hired the employee.

In October 2003, the employer's asset protection area manager received an anonymous tip that the employee had a felony drug conviction and possibly falsified company documents. The asset protection manager received a copy of the employee's application and background materials from human resources/staffing. He also questioned the employee regarding his application. Based upon the investigation, the employer terminated the employee on December 4, 2003 (week 49) for alleged falsification of his employment application. Following the termination, the employee initiated a claim for unemployment insurance benefits.

Section 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 discharge was for misconduct connected with his employment.

The employer petitioned the appeal tribunal decision arguing that the employee's job application falsification constituted misconduct connected with the employment. The commission disagrees. Specifically, while the commission has considered intentional falsification of employment applications to be misconduct in the past and it is clear that the employee was not fully honest in reporting each and every conviction on his application, the employer had knowledge of the actual conviction record and his dishonesty prior to its decision to hire the employee. For whatever reason, it still decided to hire him. Thereafter, the employer failed to present any evidence of conduct evincing a wilful or substantial disregard of the employer's interests or of the standards of conduct that it had a right to expect.

The commission therefore finds that in week 49 of 2003, the employee's discharge was not for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed June 18, 2004
currywa . urr : 150 : 1 MC 630.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The commission has rewritten the appeal tribunal decision to clarify the basis of the commission's decision.


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


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2004/06/21