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

CHRISTINE A BURNS, Employee

MERITER HOSPITAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04002873MD


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 about 20 years as an inventory clerk for the employer, a hospital. Her last day of work was April 29, 2004 (week 18), when she was suspended.

Patient confidentiality is a requirement imposed on the hospital by state and federal laws.

The employee was offered, on May 5, 2004, (week 19) the option of resigning or being discharged. Since the employee did not have the option of remaining employed, for unemployment insurance purposes she was discharged. The employer informed the employee that she was being discharged for violating hospital and federal law. The employer had given the employee a handbook explaining the patient confidentiality policies and she attended employer-provided education on confidentiality.

Since the employee was discharged, it must be determined whether the employee's discharge was for misconduct connected with her work.

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."

On March 17, 2004, the supervisor called the employee into her office to discuss a report that the employee had asked another worker (Deb) for information about a patient in the hospital. Deb told the employee she could not do that. Deb had informed the employer that the employee was asking for this information. The patient was the granddaughter of a parishioner at the employee's church. The supervisor explained to the employee that because of federal guidelines the employee could not get this information and the only way she could do it would be to go home, call the employer, give the patient's name and find out what room she was in that way. Presumably if the front desk gave the employee this information it meant the patient agreed to allow the operator to give out her room number. The employee was warned that any further breaches of confidentiality could lead to discharge.

On April 26, 2004, the employee learned from a surgery schedule at the workplace, that the same co-worker, Deb, was having surgery. The employee asked Deb how long she would be in the hospital and Deb informed her that she would only be in the hospital for a day or so. Deb notified her supervisor of the employee's comments and on May 5, 2004 (week 19), the employer discharged the employee for violating its confidentiality rules.

The employee argued that her discharge was not for misconduct connected with her work. The commission agrees. An intentional violation of a confidentiality rule, in particular after a recent warning, could easily be considered an intentional and substantial disregard of the employer's interests. However, the commission, after reviewing the record in this case, cannot conclude that the employee intentionally violated the employer's rules. The employer's policy on page 4, at 5.6 indicates that a worker who becomes a patient will have the same privacy and confidentiality rights as any other patient. The employee in this case may have interpreted this rule to mean that she could not disclose information to any third party about her co-worker, as opposed to discussing the situation with the patient/co-worker herself. The employee testified she did not know she was violating the employer's policy by asking Deb how long she would be hospitalized. While the employee may have violated the employer's policy, the commission found the employee credible when she testified she did not realize that this was a violation. The employee had worked for the employer for many years, and apparently had no other disciplinary problems. The employee may not have realized Deb did not want the employee to know about her surgery. On one occasion Deb had spoken to a doctor about her personal medications when the employee was sitting at a desk only a few feet from her. Finally, Deb, who was having the surgery, was the same person who reported her for the earlier violation. If the employee was aware that her question was a violation of policy, it is unlikely in the extreme that she would have asked the question of this particular co-worker since she knew that this co-worker would be likely to report any violation. The employer may have made a valid business decision when it discharged the employee because the employee was not able to understand or follow critical employer policies. However, the commission cannot conclude that the employee's discharge amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 19 of 2004, the employee was discharged, but that her discharge was not for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2004, if otherwise qualified.

Dated and mailed March 8, 2005
burnsch . urr : 145 : 4  MC 687

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ thought the employee was inquisitive about the affairs of others. The ALJ also found credible the employer witness who testified that the employee changed her story, with respect to where she saw the information about the co-worker. With respect to whether the employee knew that she was violating an employer policy, the employee had been warned about patient confidentiality but the ALJ was not certain that the employee was aware that talking to the co-worker/patient was a breach of that co-worker's confidentiality. The ALJ suspected the employee was snooping, and pointed out that this would be an intentional act. The employer may have suspected that the employee learned of the co-worker's surgery because she was snooping. However, the employer failed to establish that such was the case. For the reasons in the commission's decision, the commission disagrees with the ALJ's credibility determination.

cc: Attorney Paul F.X. Schwartz


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