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

THOMAS R ROLOFF, Employee

US CELLULAR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06400680AP


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

The second paragraph on page 4 of the appeal tribunal decision (the eighth paragraph of the FINDINGS OF FACT and CONCLUSION OF LAW section) is deleted and the following substituted:

The employee did, however, violate this policy when he renewed his brother's account. The employer, however, failed to provide sufficient notice to the employee that his job would be in jeopardy if he committed such a violation and, without more, this violation was not sufficiently egregious to support a conclusion that the employee engaged in misconduct.

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2006, if otherwise qualified.

Dated and mailed July 27, 2006
rolofth . umd : 115 : 4  MC 665.04 MC 688.1  MC 699.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner


MEMORANDUM OPINION


The employer's handbook states that employees who access, view, or make changes to accounts belonging to "friends and family" will be subject to disciplinary action up to and including termination.

The employer does not define in its handbook who would be considered to be a member of a worker's "family." The employer did, however, in August of 2005, issue a message to workers, including the employee, which advises that "family and friends" should be interpreted as including those with whom the worker has a "special connection."

On February 7, 2006, the employer became aware that the employee had renewed accounts belonging to his brother and to the wife of his cousin, with whom he was not close. The employer discharged the employee as a result. The employee had received no prior warnings.

The commission agrees with the administrative law judge that it would not be reasonable to consider one's cousin's wife as a member of one's family. In addition, given that he was not close to his cousin or to his cousin's wife, the employee did not have what could be fairly characterized as a "special connection" to either one of them.

Obviously, however, one's brother is a member of one's family.

The employee contends in this regard that his brother was present at the retail location where the employee worked; he and his brother engaged in a personal conversation; this conversation distracted the employee; and, as a result, he forgot about the employer's policy when he renewed his brother's account at that time.

However, first of all, it is simply not plausible that the employee, who testified he was aware of the policy, and who admitted he had recently received a message from the employer and had engaged in a meeting with his supervisor reminding him of the policy, would forget about it as he was speaking to, and waiting upon, his brother.

Moreover, the commission holds employees responsible for complying with employer policies of which they have reason to be aware. See, Harden v. US Cellular, UI Hearing No. 05606674WK (LIRC Jan. 31, 2006); Forster v. Maritime Saving Bank, UI Hearing No. 02003296WK (LIRC March 14, 2003). The basis for holding the employee responsible for complying with the subject policy is even more compelling here where the employee admits he was actually aware of the policy and where the employer had recently gone to considerable lengths to remind him of the policy.

The commission concludes, however, that, even though the employee should be held accountable for conforming his conduct to the policy at issue here, the employer failed to prove that the employee's violation of this policy constituted misconduct.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Kovach v. Farm/Fleet Janesville, Inc., UI Hearing No. 05005166WK (LIRC Feb. 24, 2006).

The consequence stated in the employer's handbook for violating the policy under consideration here is "disciplinary action up to and including termination." Although the employee had been told that the employer would have "zero tolerance" for violations of this policy, the record does not show that any further explanation was provided. Although it is arguable that "zero tolerance" could be interpreted as requiring discharge for any violation of this policy, it is more reasonably interpreted, particularly when the language of the employer policy is taken into account, as requiring some type of disciplinary action, which may or may not involve discharge, for any violation. As a result, the employer has failed to show that the employee had reason to be aware that his job would necessarily be in jeopardy for violating this policy by renewing his brother's account.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy if he engaged in it. The commission concludes it was not.

The record does not show that the employee provided his brother any benefit not available to other customers, or received more than a nominal fee as the result of the renewal of his brother's account. The most that can be said is that the employee's actions had an appearance of impropriety and, under the circumstances present here, although probably deserving of some level of discipline, the employee's conduct was not sufficiently egregious to support a conclusion of misconduct in the absence of notice that such conduct would place his job in jeopardy.

Finally, the administrative law judge held that the employer did not have good cause for its failure to provide certain requested information to the department adjudicator and, as a result, if a higher authority were to reverse the decision on the merits, certain benefits would be charged to the employer's account. The commission did not consider this holding since it was not necessary for its resolution of this matter.

cc:
U.S. Cellular Corporation
Amy L. Svoboda


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