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

TINIKI GREER, Employee

OPPORTUNITIES INDUSTRIALIZATION CENTER
OF GREATER MILWAUKEE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608844MW


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 four months as a unit clerk for the employer, a non-profit agency serving the W-2 program. Her last day of work was August 20, 2004 (week 34), when she was discharged.

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

In the employment application she completed on March 23, 2004, the employee was asked whether she had ever been arrested and convicted of a crime. The employee answered "yes" to this question. The application then asked, "If yes, what type of offense?" The employee answered, "1997, retail theft."

It was the employer's practice to conduct a criminal background check of new employees. The check run by the employer at the time of the employee's hire (exhibit #4) reflected a retail theft conviction as the employee had disclosed on her application.

In signing this application, the employee certified that all her answers were true and complete, and that she understood that any false or misleading information could lead to her discharge.

In July of 2004, the employee wrote a letter to the employer's administrator complaining that two of her coworkers were attempting to invade her privacy by inquiring about the monitoring device she was wearing on her ankle. The employer not only investigated the employee's complaint, but also her criminal record to determine whether there was an arrest/conviction she had not reported which would account for the monitoring device.

This second criminal background check revealed the following three criminal convictions:

(1) Milwaukee County -- charges filed 10/16/97 -- offense date 10/8/97 -- conviction for misdemeanor retail theft on 1/25/99 -- sentenced to 45 days in jail

(2) Waukesha County -- charges filed 7/23/98 -- offense date 5/15/98 -- conviction for misdemeanor retail theft on 1/29/99 -- sentenced to 3 days in jail and payment of a fine

(3) Milwaukee County -- charges filed 9/25/01 -- conviction for misdemeanor disorderly conduct on 4/5/02 -- sentenced to payment of a fine

The employee was discharged for failing to list the disorderly conduct conviction, and for failing to disclose her middle name, on her employment application.

The employee reasonably concluded that her disclosure of a retail theft conviction on her employment application subsumed her two convictions for this offense in January of 1999 based on charges filed in 1997 and 1998.

The employee was not aware that a criminal conviction resulted from the disorderly conduct charge filed against her in 2001, which was resolved by her payment of a fine.

In Boynton Cab v. Neubeck, 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' within the meaning of the statute."

Although the employee failed to accurately and completely report her conviction record on her employment application, her failure was not a deliberate one and did not, as a result, satisfy the Boynton requirement that the disregard of an employer's interests be intentional in order for misconduct to be established.

The employer also contends that the employee intentionally failed to disclose her middle name on her application in order to inhibit the employer's ability to conduct a complete criminal background check. However, the criminal background check identified by the employer as the one conducted at the time of the employee's hire (exhibit #4) indicates that the search was done based on the employee's full name, including her middle name.

The commission concludes that, in week 34 of 2004, the employee did not voluntarily terminate work with the employer within the meaning of Wis. Stat. § 108.04(7)(a); but was discharged, within the meaning of Wis. Stat. § 108.04(5), and this discharge was not for misconduct connected with the employee's work.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 34 of 2004, if otherwise qualified.

Dated and mailed February 4, 2005
greerti . urr : 115 : 1   MC 630.20

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The commission did conduct a credibility conference with the administrative law judge before reversing his decision. The administrative law judge indicated during this conference that he credited the employee's testimony that she had not realized, when her disorderly conduct charge was resolved by payment of a fine, that a criminal conviction had resulted. This fact, considered in conjunction with the employee's admission on her application of another conviction, led the commission to conclude that the employee had not intended to mislead the employer as to her criminal record. The commission did not overturn any of the administrative law judge's credibility determinations or findings of fact in reversing his decision.

 


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