LORI J SEARCY, Employee
VALLEY VNA HEALTH SYSTEMS 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits beginning in week 40 of 2003, if otherwise qualified.
Dated and mailed July 2, 2004
searclo . usd : 150 : 3 MC 610.04
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The employee admitted taking steps to operate her own business. While the
employer argued that she was actually operating the business and competing with it,
the commission disagrees. At the time of discharge, the employee had a corporate
structure and telephone number, but the business was not yet bonded or insured
and it did not have clients or employees. Additionally, there is no evidence that the
employee advertised before the discharge, that she solicited customers of the
employer or that her pursuit of self-employment negatively affected her services for
the employer. Under these circumstances, it was not established that she actually
was operating a business, let alone a competing one, or that she violated a duty of
loyalty to the employer. An employee is under no duty to an employer to refrain from
seeking to establish self-employment in order to better oneself.
Kal A. Kerlin v.
Executive Mortgage LLC, UI Dec. Hearing No. 01402871MD (LIRC March 6, 2002).
Finally, although the employer had a "Conflicts of Interest" policy and it may have
been prudent for the employee to discuss her self-employment plans with the
employer, given the vague language of the policy together with the fact that it there is
no evidence that the employee was actually operating a business or planning to
compete with the employer, the commission finds that her failure to disclose the
situation to the employer did not violate the policy or evince a wilful or intentional
disregard of the employer's interests so as to constitute misconduct.
For these reasons, the commission adopts the appeal tribunal decision as its own.
cc: Attorney Gregg Bott
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uploaded 2004/07/06