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

DENISE DWYER, Employee

HOMME HOME FOR THE AGING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05401620AP


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 part-time for three years as an activities aide for the employer, a skilled nursing care facility. Her last day of work was March 9, 2005 (week 11). She was discharged on April 12, 2005 (week 16), for giving the employer false information.

The employer's handbook states that employees are required to inform the employer of pending criminal charges. This rule is required by the state licensing authorities. From her last day of work until April 18, 2005, the employee was on a non-FMLA unpaid leave of absence. The employee requested the leave for a back injury and depression. When she attempted to extend the leave of absence to April 25, 2005, she told the employer for the first time that she was in jail. The employee was convicted of driving under the influence in 2003. In January, 2005, the employee was charged with driving after revocation. She was serving that jail sentence when the employer discharged her.

The issue to be decided is whether the employee was discharged for misconduct connected with her employment.

The employee testified that she did not intentionally lie to the employer about her criminal charges and convictions. The commission does not credit the employee's testimony. She admitted that she was afraid to tell the employer what she was going through. Moreover, the employer's witness credibly testified that the employee admitted knowing about the reporting requirements when she was confronted. Finally, the employee worked closely with her counselors to arrange her leave and her jail sentence so that they would occur at the same time which would conceal from her employer that she was unavailable for work due to her legal difficulties. The commission concludes that the employee intentionally concealed her criminal charges and convictions from her employer despite her awareness of the necessity of reporting them.

The employer was entitled to receive this information for state licensing purposes. The employee worked in a nursing home setting, where the employer had a higher duty ensure the safety of its clients. It was not the employee's role to determine whether her legal convictions were relevant to her employment. It is for employer to decide whether a conviction is relevant and the employee owes the employer honesty.

The commission therefore finds that in week 16 of 2005, the employee was discharged from her employment 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 $ 2,637; for which she was not eligible and to which she was not entitled, with in the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund. Wis. Stat. § 108.22(8)(c) provides that the department shall waive recovery of overpaid benefits, if the overpayment occurred as the result of departmental error, without fault by the employer, and was not caused by the claimant's fault, false statement or misrepresentation.

The benefits were paid to the employee as a result of the appeal tribunal decision, finding that her discharge was not for misconduct connected with her employment. The overpayment is caused by the commission's reversal of that decision due to a differing legal interpretation. The overpayment is not due to department error and, therefore, the overpaid benefits must be repaid.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 16 of 2005, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $ 2,637 to the Unemployment Reserve Fund.

The initial Benefit Computation (Form UCB-700), issued on May 6, 2005 is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed November 29, 2005
dwyerde . urr : 178 : 1   MC 617  MC 630.07

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing. The ALJ had no clear recollection of the demeanor of the parties. However, the commission finds the employee's testimony that she was unaware of her duty to report her criminal charges incredible for the reasons stated above and reverses accordingly.



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uploaded 2005/12/05