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

LORI J SEARCY, Employee

VALLEY VNA HEALTH SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03403974AP


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.

DECISION

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


MEMORANDUM OPINION


The employer petitioned the appeal tribunal decision requesting the opportunity to present new evidence to support its position that the employee's discharge was for misconduct connected with her employment. Specifically, it offers evidence attempting to impeach the employee's testimony that, at the time of the hearing, she was not competing with the employer in its market. The commission rejects the petitioner's request. Whether the employee took active steps to compete with the employer after being discharged is not material to the employer's actual discharge decision, namely its belief that the employee was operating a business during the employment, of which she should have at least notified the employer of under its policies.

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


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


uploaded 2004/07/06