COLEEN C KRYCHOWIAK, Employee

KINDERCARE LEARNING CENTERS INC, Employer

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:

The employee worked for about one month for the employer. Her last day of work was on or about May 18, 2005. She was discharged on or about May 25, 2005 (week 22), for her actions on her last day of work.

During the course of her employment, the employee received a verbal warning from the employer for dealing harshly with children to whom she was assigned. On her last day of work three children in her care were throwing puzzle pieces around the room. The employee repeatedly asked the children to stop and to start cleaning up. Two of the children obeyed and began to clean up. One did not obey. The employee decided to place the child in a time out. The employee placed the child down roughly in a chair. The child began screaming and kicking objects. The employee believed it would be better to put the child farther away from the situation. The employee carried the chair, with the child in it, to the bathroom, which was five feet away. The employee set the child down in the bathroom. The employee told the child that his behavior was inappropriate, that she was not going to tolerate it, and that was why she was placing him there for a few minutes until he calmed down. The employee left the door to the bathroom open. The child stayed in the bathroom for one and one-half minutes. The child then came out of the bathroom, apologized for his behavior, and began helping the other two children pick up the puzzle pieces.

The employer's Child Discipline Policy provides:

"Timeout" is not an acceptable form of discipline. Use "redirection" to direct the child's attention to a different program activity.

The employee signed that she received that document on April 5, 2005. Also presented at the hearing was a document entitled Policies and Procedures. That document states:

Punishment is appropriate only for repeated misbehavior. Acceptable punishments are removing the child from one play area to another, limiting play privileges, and using "timeout" to provide the child an opportunity to think about appropriate behavior. "Timeouts" should last no more than one minute per year of age, be located within sight of an adult responsible for the child, and preferably where the child can see other children. Once the "timeout" period is completed, the child should be returned to normal activities."

The employee had not been told that timeouts were acceptable, but was told that the employer preferred redirection to using timeouts.

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

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 insurance 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."

The commission credits the employee's testimony that she believe that timeouts were not a preferred form of discipline. The employer's Child Discipline Policy does state that timeouts are not permitted. However, the employer also submitted a document entitled Policies and Procedures which conflicts with the Child Discipline Policy on the use of timeouts. Although the Child Discipline Policy appears to be the more recent policy, the existence of the Policies and Procedures document lends credence to the employee's testimony that she believed timeouts were allowed but not preferred by the employer. The employee's actions in roughly placing the child in the chair showed extremely poor judgment on her part, but she made a spur of the moment decision in a situation in which a child was out of control. Her actions did not demonstrate such a wilful and substantial disregard of the employer's interests as to amount to misconduct.

The commission therefore finds that in week 22 of 2005, the employee was discharged from her employment but not for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 22 of 2005, if she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed January 20, 2006
krychco . urr : 132 : 1 :  MC 610.25  MC 689

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ did not impart any demeanor impressions that he had of the witnesses that led to his decision.

cc: Kindercare Learning Centers, Inc. (West Allis, Wisconsin)

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uploaded 2006/01/24