MAY E FUSS, Employee

PICK N SAVE , 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 over four years as an assistant deli manager for the employer, a grocery store. Her last day of work was November 11, 2005 (week 46).

In early October of 2005, some of the employee's co-workers reported to the employer's human resources director that they had concerns over the employee's job performance regarding tasks not being completed. The human resources manager then had the co-workers document the employee's actions over the next month.

In early November, the human resources manager compared the co-worker's notes with the employee's time records. It was discovered that, on September 19, the employee took a twenty-two minute break and, on September 20, she took a twenty minute break, even though she was only entitled to breaks in fifteen minute increments. It was also discovered that, on September 20 and 21, certain items were not completed by the employee. On September 30, the employee took a twenty minute break and on October 17, she took a seventeen minute break. On October 2, she took a sixteen minute break. On October 10, the employee had one of the co-workers place an order because she said she did not have time to do it. There were also a few items that were not prepared that day. On October 11, the employee was gone for a period of three hours because she had to take one of her children to an appointment. On October 12 and 13, the employee took a thirty-six minute lunch even though she was only entitled to thirty minutes, and she took a seventeen minute break. On October 15, the employee had an eighteen minute break. On October 17, one of the co-workers was upset because the employee had another worker make some of the salads that the co-worker thought the employee should have made herself. On October 18, the employee again took a thirty-six minute lunch break and on October 19, it was thirty-five minutes. On October 21, she took a twenty-two minute break. On October 24, the employee took a thirty-seven minute lunch break. On October 25, there were some items that had not been prepared the day before by the employee. On October 31, the employee took a thirty-one minute lunch break.

The employer's store director told the employee, on one occasion in early October of 2005, that she should not have been talking on her cellular telephone while working. The employee was already punched out but was still behind the counter. The employee was observed on her cellular telephone several times after that occasion for short periods of time while she was still punched in. She was never issued a warning regarding her telephone usage and she would only answer the telephone if it was a call regarding one of her children, with whom she had a lot of serious issues going on.

On November 4, 2005, the employee told the employer's deli manager that she needed to take her daughter to school and that she would take her thirty-minute break and be right back. The employee left without punching out of work, came back one-half hour later and did not punch back in. On November 11, 2005 (week 46), the employer discharged the employee for time theft, using her cellular telephone at work, and for not completing her work assignments.

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

The employer argued that the employee's actions amounted to misconduct. The commission disagrees.

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 employer argued that the employee violated its policies by taking breaks that were too long. While that may have been true, the employee did not do that every day and her breaks were typically long by only a few minutes. It is significant that the employer never issued the employee a warning. In interpreting the meaning of the term "Misconduct", the commission has consistently held that, except for the most serious of offenses, the employer has an obligation to warn a worker that her performance is not satisfactory and give her an opportunity to improve before a finding of misconduct will be made. See Marcolini v. Alma Public Schools, Hearing No. 78-20774EC (LIRC, May 1979). The employee had several personal issues with her children and often had to take them to school and appointments. The employer accommodated her schedule and allowed her some flexibility as to when she took breaks. The employee had no warning that her job was in jeopardy because of the length or number of breaks she took.

Similarly, the employee was never given a warning about her cellular telephone usage. Further, she also tried to limit her usage after the store director told her not to use it on one occasion. While it may have interfered with her work to a small extent, she was never specifically told that she should no longer use her telephone at all, even though the employer was aware she was doing it.

The employer also asserted that the employee was not completing her work assignments. However, while the employer had workers observing the employee for over one month, there were only a few occasions where a few items were not done. On some of those occasions, the employee simply did not have the time to complete them or it was someone else's responsibility. The employer also, again, never gave the employee a warning about her work performance.

Finally, the employer alleged that, on November 4, the employee failed to punch out or back in after being gone for half an hour. The employee denied that she had to take her daughter to school and argued that she had to go to another store to do a transfer. The employer's witnesses testified credibly that there was not a transfer that day and the employee said that she was taking her daughter to school. The commission concludes that the employee did not intentionally fail to punch out. Even assuming that she was not working, but was taking her daughter to school, the employee informed the deli manager that she was going to take her daughter to school. The employee had called attention to the incident and would therefore be unlikely to deliberately fail to punch out. The employee had no prior discipline or warnings for failing to punch out and this appeared to be an isolated instance of poor judgment on her part. The employer allowed the employee a lot of flexibility in her schedule. The employer never issued the employee any warnings to let her know that how she was arranging her schedule or performing her duties was unsatisfactory to the employer.

The commission therefore finds that, in week 46 of 2005, the employee was discharged, but that the discharge was not for misconduct connected with the employee's work within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is modified and as modified is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed May 31, 2006
fussma . urr : 145 : 4  MC 697

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ found that the employee's failure to punch out and her taking excessive breaks was not intentional behavior on her part. He pointed out that he believed that the employee was distracted by the events in her personal life, as she had many serious issues going on with her children. He believed this might have affected her memory. As such, the ALJ did not consider the employee's shortcomings and performance failures to amount to misconduct. After reviewing the record, the commission defers to the ALJ's credibility determination.

[Ed. note: The decision is reproduced here as affected by a corrective amendment issued on June 14, 2006.]

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uploaded 2006/06/05