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

RHONDA L SPENCER, Employee

AMERITECH SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05601132MW


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 for about four and one-half years as a customer service representative for the employer, an operator of a telecommunications business. Her last day of work was December 10, 2004 (week 50), when her employment was suspended pending an investigation of her time-keeping practices.

In November 2004, the employer concluded an audit of staff time-keeping practices. Of 154 staff members approximately 22 had exceptions where time not worked was recorded as having been worked. Typically, the errors occurred on days when staff members were permitted to leave work early and there was a failure to note in the time recording system the reduction in hours. Any staff members who received pay in excess of $500 were discharged. The others received lesser or no discipline. The employee received pay in an amount of approximately $800 to which she was not entitled. On each day in question, she left early with permission, printed out an accurate time record and gave the record to her supervisor, but failed to note the time difference in the employer's "elink," the system used by payroll. Prior to August, the supervisor had entered the information.

The issue presented in whether the employee was discharged for misconduct connected with the work under § 108.04(5).

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' within the meaning of the statute."

The employee maintained that after July either she or her supervisor would enter her e-time in e-link. The commission does not find this claim credible. There is no evidence that after July the employee and the employee's supervisor both input the employee's e-time for partial time off. The employer's policy dictates that when an employee is not there to put in the e-time in e-link, the supervisor will do it for the worker. That is, if a worker takes the whole day off or is absent an entire day, then the manager is to put in the e-time in e-link. But when the employee is there and able to do it herself, it's the employee's responsibility. It does not make sense that sometimes the employee would put in her e-time and sometimes her manager would put it in. The employee was paid based on the time she reported on e-link. The employee's failure to accurately report her e-time resulted in the payment of $800 to the employee to which she was not entitled. The employer had a right to expect the employee to accurately record her work time. She failed in that responsibility. The employee's actions demonstrated an intentional and substantial disregard of the standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 4 of 2005 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 $6,580.00 for weeks 4 through 23 of 2005, 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 (l0e) (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(l0e)(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) (fl, the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 4 of 2005, 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 $6,580.00 to the Unemployment Reserve Fund.

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 June 20, 2005
spencrh . urr : 132 : 1 :  MC 630.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ was unable to recall the witnesses to offer any demeanor impressions that led to any credibility assessment.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another 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 overpayment.


cc:
Ameritech Services, Inc. (Hoffman Estates, IL)
Sam Butler


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uploaded 2005/06/30