VANESSA R CLAYBORN, Employee

ASSOCIATED BANK NA, 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 from February 2, 2003 (week 6) to March 4, 2003 (week 10) for the employer, a bank. Her job was as a branch manager. The employer discharged the employee on March 7, 2003 (week 10), for providing false information on her application for work and for being booked and charged with a criminal offense.

The employee applied for work with the employer on January 7, 2003 (week 2). On her application for work, she listed her previous employers including U.S. Bank. The dates of employment she gave for U.S. Bank were January 2002 to "present". The application asked whether the employer could contact the listed employers. The employee responded, "Yes: Except US Bank: I am still on there(sic) payroll and interviewing for other positions." On March 5, 2003, the employer learned that the employee was charged with diverting money from business accounts at U.S. Bank to her personal account. The employer conducted a background check and discovered that her employment with U.S. Bank ended November 14, 2002.

The issue to be decided is whether the employee was discharged for misconduct connected with her work for the employer. 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 employee maintained that she indicated that she was still employed by U.S. Bank on her application because she was paid vacation pay and severance pay for weeks after November 14, 2002 (week 46) to January 15, 2003 (week 3). The commission finds the employee's claim to be incredible. The employee had only worked for U.S. Bank beginning in January of 2002. The commission finds it incredible that she would receive 10 weeks of vacation and severance pay after such a short-term of employment, and after being discharged for diverting clients' funds into her own account. The commission finds that the employee responded as she did so that the employer would not contact U.S. Bank and learn the reason for her separation. The employee provided false information on her employment application. The employer had a right to an honest response to the question regarding the employee's prior employment. The employee's failure to provide such honest response demonstrated an intentional and substantial disregard of standards of behavior the employer had a right to expect of the employee

The commission therefore finds that in week 10 of 2003, the employee was discharged for misconduct connected with her 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 $11,500.00 for weeks 10 through 36 and 49 through 52 of 2003, and weeks 1 through 4 of 2004, of which $329.00 is set forth on another decision, 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. Wis. Stat. § 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 10 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. The employee is required to repay the sum of $11,500.00 to the Unemployment Reserve Fund. The benefits paid for weeks 47 and 48 of 2003 were withheld as forfeitures. Since the employee is not eligible for those weeks, they cannot be used as forfeitures. $658.00 will be restored to the forfeiture balance.

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 July 21, 2004
claybva . urr : 132 : 1 : MC 630.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that he was not completely convinced of the employee's explanation for indicating she was presently employed at U.S. Bank on her application. The ALJ indicated that he based his decision on the conclusion that the employee was discharged because she was unable to be bonded, which was a requirement of her position. However the employer took the steps to verify her employment history with U.S. Bank, and the discharge letter referenced her falsification of her employment history with U.S. Bank. The commission credits the employer's testimony that such falsification was in fact a reason for the employee's discharge.

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will with hold benefits due for future weeks of unemployment in order to off set over payment of U.I. and other special benefit programs that are due to this state, an other state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the over payment.

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uploaded 2004/07/27