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

LESLIE J MILLANE, Employee

LA MACCHIA ENTERPRISES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04609388MW


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 38 of 2004, if otherwise qualified.

Dated and mailed February 8, 2005
millale . usd : 115 : 1   MC 617  MC 665.08

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee worked for J&B Construction from February 15 through August 31, 2003. During the course of her work for J&B Construction, the employee charged at least $7,000 in personal expenses to the company's credit card. On August 19, 2004, she was charged with felony theft in a business setting, and she pled guilty to these charges on August 31, 2004.

On December 5, 2003, the employee completed a job application for the employer on which she omitted any reference to her employment with J&B Construction.

The employer concedes that the employee was discharged due to her conviction of felony theft in a business setting for actions in which she engaged prior to her employment, and not due to the concealment of her prior employment with J&B Construction, because the employer first became aware of this concealment after the employee's discharge had already been effected

The commission agrees with the administrative law judge that misconduct has not been demonstrated because the employee engaged in the actions upon which her conviction was based prior to her employment by the employer and, as a result, such actions could not be "connected" to such employment. See, Hong v. Best Buy Stores, Ltd., UI Hearing No. 99603589MW (LIRC Oct. 14, 1999) (criminal offense not connected to employment where underlying actions occurred prior to employment).

The circumstances under consideration here do not satisfy the narrow exception carved out by the commission in Nelson v. Childrens Outing Association, UI Hearing No. 00602648MW (LIRC Sept. 8, 2000), and Thomas v. Innovative Family Partnership, Inc., UI Hearing No. 00602702MW (LIRC Aug. 10, 2000) where the employees' convictions or citations for prior actions actually rendered them ineligible for the subject employment.

Although the commission agrees, as the employer asserts in its petition, that it had a legitimate business reason for discharging the employee, the circumstances here do not satisfy the relevant requirements for the award of benefits.



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