LINDA L HYLER, Employee

RACINE COUNCIL ON ALCOHOL & OTHER DRUG ABUSE 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 makes the following:

The employee worked for about ten years as a program aide for the employer, a non-profit agency. The employee's last day of work was on June 10, 2004 (week 24), when the employer discharged her.

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.

On December 3, 2003, the employee received an evaluation that included criticism for the accuracy of her record keeping. The employer placed her on 45 days probation. She successfully completed that probation.

The employer received a grant from Racine County to track at risk students through high school. A participant file is used to document parent contacts and attendance at program sessions. The employee was in charge of running the sessions and keeping records of students' attendance at those sessions. In May of 2004, the employer conducted an audit of the employee's documentation. The employer discovered that the files contained incorrect programming dates, missing programming dates and missing participants' names among other problems.

In a February 26, memo the employee informed the employer that she had to cancel the session that day because of a doctor's appointment. That memo indicated that on March 4 school was canceled. If there was no school there was no programming. However, the employee's attendance sheets showed that for February 26 programming occurred and indicated certain students were in attendance and certain students were not. The March 4 entry also indicated that programming occurred on that day and showed that certain students had attended and certain students were absent.

On March 26, the employee took a vacation day but indicated on attendance sheets that a session was held. She indicated on her time sheet that she had taken a vacation day. On April 2 the employee took a sick day but again indicated on attendance sheets that a session was held.

The employee indicated in her records that a session occurred on April 4. However, April 4 was a Sunday during the school's spring break.

On April 29 the employee conducted a session over the lunch hour without permission. The sessions were to be conducted after school because it was difficult to get a session completed in a lunch period. The supervisor received reports that the students were wandering the halls after school as they did not realize that the meeting had been held at lunch.

On May 7 the employee's supervisor went to a school to monitor the employee. The supervisor arrived at 12:15 p.m. and the employee arrived at 12:40 p.m. The session had not begun at 12:55 p.m. when the supervisor left. However, on her time sheet the employee indicated that she was there from 11:30 a.m. until 1:30 p.m. The supervisor requested that the employee change the hours but they were not changed.

The employee's inaccurate reporting jeopardized the employer's funding. The employee's actions in not keeping accurate attendance also had the potential consequences of parents whose children attended the sessions getting truancy tickets that they would have to pay and other parents whose children were absent not receiving tickets.

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 misplaced her records and the inaccuracies occurred when she tried to recreate those records. However, the record does not reflect that the employee at any time alerted the employer that she had misplaced her records. The record does not reflect that the employee alerted the employer that the inaccurate records were the result of trying to recreate records she had lost. The employee had been previously counseled about her inaccurate record keeping and placed in probationary status because she failed to maintain accurate records. It was therefore incumbent upon the employee, if she in fact lost her contemporaneous records, to inform the employer of that fact, particularly given the consequences of failing to accurately report the attendance or absence of students. The employee's "recreation" was so careless that she indicated not only that a session occurred on a Sunday, but that it occurred on a Sunday during spring break.

The employee engaged in intentional conduct that demonstrated substantial disregard for the employer's interests and for standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 24 of 2004 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $1,123.00 for weeks 25 through 31 of 2004, 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), departmental 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, by commission or omission, 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 departmental 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 departmental 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 24 of 2004, 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 $1,123.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on August 31, 2004, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

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 December 30, 2004
hylerli . urr : 132 : 1 : MC 630.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

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 did not recall the witnesses.

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.

 

cc: Attorney Michael R. Phegley

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uploaded 2005/01/04