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

LAURA A CRICHTON, Employee

THE COPPS CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05400215AP


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 the employer, a grocery wholesale/retail business, for just under three years as an inventory clerk. Her last day of work was December 9, 2004, and she was discharged on December 15, 2004 (week 51).

In November of 2004 the employer notified its hourly employees that, starting December 5, it would be implementing a new method of punching in known as a "finger scan," in which a digital photograph would be taken of each worker's right index fingerprint. The employer explained that the purpose of the finger scan was to prevent employees from punching in for one another and to ensure accurate payroll. However, at the hearing the employer presented no evidence to suggest it had a problem with employees punching in for one another, and the employer's witness testified that he had no knowledge of such a problem.

Prior to implementing the finger scan technology, the employer posted two pages of printed information near the time clock which described the system and which stated, in part, as follows:

"The Kronos 4500 Touch ID Terminal features a biometric finger scan that verifies a badge swipe. Employees' privacy is protected because the scan does not capture and store actual fingerprints. In the enrollment process, the technology takes a digital photo, extracts its unique features then turns the information into a mathematical template, an algorithm or type of finger geometry, which is stores. Each time our finger is scanned at the clock, the system takes another "photo" and converts it to a mathematical sequence which it compares with the one on file. These finger templates consume minimal storage in a database and are virtually useless outside the Kronos system because you cannot recreate an actual fingerprint from them." (Ex. 1, p. 1).

The second page posted by the employer was entitled "Frequently Asked Questions for Roundy's Employees," and included the question "What about privacy? Can the finger scan be used to identify someone for other purposes?" The answer provided was the same as the above. However, in place of the statement "the technology takes a digital photo," the information on the second page stated, "the technology takes a digital photo of the fingerprint." (Ex. 1, p. 2)(emphasis added).

Upon reviewing the information referenced above, the employee went to her supervisor and expressed concerns that under the new system she would be providing the employer with her fingerprints. The supervisor e-mailed another manager about the matter, and received the following response, which was forwarded to the employee:

"It is not a fingerprint. It is a scan. It is not a legally [sic] issue. If you refuse you will be subject to termination."

Having received this response, the employee then went to Erick Dziak, the employer's applications administrator, and explained that she was concerned her privacy would not be protected under the finger scan system. The employee requested information beyond that provided in the document posted at the time clock. Mr. Dziak in turn referred the employee to human resources.

The employee contacted human resources and requested additional information about the finger scan system. The individual to whom the employee spoke told the employee that she was not a "techy," and that all she had was the information the employee had already seen. The human resources manger arranged to have an individual from employee support services contact the employee. However, when the employee asked this individual questions about the finger scan enrollment process and whether the initial photo was destroyed, he was unable to tell her.

During several of her conversations with the employer the employee requested that it provide her with what she termed a "consent form," a written assurance that her information would be protected and would not be used for any other purpose. However, the employer refused to do so.

On December 8, 2004, the employee was supposed to provide a finger scan for the first time, but refused to do so. She was issued a written warning as a result. The following day the employee received a second written warning for again refusing to provide a finger scan. On December 14, the employee continued in her refusal to provide a finger scan and received a third written warning and a one-day suspension. The employee wrote comments on the warning indicating that she could not comply without informed consent and that she was not provided information to make that judgment. When the employee returned from her suspension on December 15 and once again refused to perform a finger scan, she was discharged.

The issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

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 employe, 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 employe'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 was discharged for refusing to provide a finger scan until she received some assurances that her privacy would not be comprised. The employee's concerns were not unwarranted. The finger scan technology was new and intrusive, and the limited information available to the employee suggested that a photograph of her fingerprints would be taken. The commission believes that a reasonable person in the employee's situation might feel uncomfortable providing her employer with a photograph of her fingerprints absent sufficient assurances that the information obtained in this manner would be destroyed and that no personal information would be stored or given away. The employee took reasonable steps to bring her concerns to the employer's attention prior to the implementation of the new technology. However, rather than provide the employee with the additional information and assurances she sought, the employer expected her to accept unquestioningly the representations contained in the printed information originally posted, about which none of the employer's representatives apparently had any independent knowledge.

Based on all the facts and circumstances, the commission concludes that the employee's unwillingness to use a finger scan system which raises privacy concerns, and about which the employer was unwilling or unable to provide meaningful assurances that the employee's personal information would be protected, did not evince a wilful and substantial disregard for the employer's interests. This is particularly true where the finger scan system was not necessitated by any actual problem in the work place concerning the proper identity of workers punching in.

The commission, therefore, finds that in week 51 of 2004, the employee was discharged and not for misconduct connected with her employment, 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 51 of 2004, provided she is otherwise qualified. She is not required to repay the sum of $2,061.00 to the Unemployment Reserve Fund.

Dated and mailed July 26, 2005
crichtl . urr : 164 : 1 MC 687  MC 697  PC 715

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Motion to Dismiss

In the petition for commission review the employee's attorney argues that the administrative law judge erred in denying his motion to dismiss the employer's appeal on the ground that it was filed by the Talx Corporation, rather than by the employer or an attorney. However, the administrative law judge's ruling on this issue was correct. The administrative rules implementing the UI statute provide, in relevant part:

"Any party may appear on the party's own behalf at any hearing under this chapter or appear with or by a representative. The representative shall be presumed to have full authority to act on behalf of the party, including the authority to file or withdraw an appeal. . . No attorney whose license is suspended or who has been otherwise disbarred and prohibited from practicing law by the courts or bar association of any state may be allowed to act as a representative at any hearing under this chapter." Wis. Admin. Code § DWD 140.02.

The administrative rules specifically define "representative" as, "any attorney or agent who the department has notice is authorized to represent any party." Wis. Admin. Code § DWD 140.001(2)(b)(emphasis added). It is therefore clear that a party can be represented by a non-attorney, or by an attorney from out of state, provided that attorney has not had his license suspended or been disbarred.

The commission has considered the remainder of the arguments in the employee's petition with regard to the motion to dismiss, but finds them unpersuasive. The question of whether or not the Talx Corporation is authorized to transact business in Wisconsin has no bearing on whether it can represent the employer in a UI appeal, nor does the court's decision in Jadair Inc. v. United State Fire Insurance Co., 209 Wis. 2d 187, 561 N.W.2d 718 (1997), which addresses the issue of whether a non-lawyer may sign and file a notice of appeal on behalf of a corporation, apply to UI proceedings where parties are expressly permitted to be represented by non-lawyers.

 

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of credibility. Rather, the commission has arrived at a different legal conclusion when applying the law to essentially the same set of facts as that found by the administrative law judge.

 

cc:
Copps Corporation (Stevens Point, Wisconsin)
Attorney James C. Kitelinger


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