SHEREKA L DAWSON, Employee

MC DONALDS DRIVE IN 2100
LATHROP 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 a year as a cashier for a fast food restaurant. Her last day work was March 24, 2006 (week 12), when she was discharged.

The employer has cash handling policies which are intended to prevent acceptance of counterfeit currency. The employee received a copy of the rules which require that a cashier seek manager approval before accepting $100 or $50 bills. On January 14, 2006, the employee accepted a counterfeit $100 bill without seeking manager approval. She received a two day suspension for it. The employer told the employee that she would be terminated if it happened again. A general notice was posted for the staff warning about counterfeit money and telling the employees to be extra cautious.

On March 23, 2006, the employee accepted a $20 bill and it was counterfeit. The employer requires cashiers to run a $20 bill through a machine to verify that it is authentic and to test it with a special pen if necessary, which is kept in the cash drawer. The employee's machine was broken. She tried to contact the manager. She did not use the pen because there was no pen in her drawer. She had already given the customer his food and his change, when she was finally able to bring this to the manager's attention. The employee was discharged for accepting a counterfeit bill for the second time.

The issue to be decided is whether the employee was discharged for misconduct.

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."

While both occasions concerned counterfeit currency, the employee did not violate the same policy twice. The employee was not clear about what to do when she received the second counterfeit bill and was unable to attract the manager's attention. She did not intend to harm the employer. While the employee exercised poor judgment in completing the transaction before she was able to discuss it with the manager, her actions were not in deliberate or substantial disregard of the employer legitimate interest in sound cash handling policies.

The commission therefore finds that in week 12 of 2006, the employee was discharged but that the discharge was 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 12 of 2006 if she is otherwise qualified.

Dated and mailed July 26, 2006
dawsosh . urr : 178 : 8  MC 689

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

The commission consulted with the ALJ prior to deciding to reverse. The ALJ felt that the employee was aware of the rule but failed to take initiative when she was unable to clearly ascertain if the bill was counterfeit. The employee may not have been as assertive about the issue as the employer preferred. However, the commission does not find that the employee's conduct rose to the level of a substantial disregard of the employer's interests.

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uploaded 2006/08/03