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

RAMON M FERNANDEZ, Employee

WEST ALLIS MEMORIAL HOSPITAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05606795MW


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 27 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.

Dated and mailed August 16, 2006
fernara . usd : 150 : 8   MC 659.02

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The petitioner requested reversal of the appeal tribunal decision, arguing that, at most, the employee's alleged sleeping behavior was an isolated incident of poor judgment.

The ultimate issue is whether the incident precipitating the discharge was the intentional disregard by the employee of standards an employer reasonably may expect of its employees. It should go without saying that employers reasonably may expect that their employees not be sleeping on the job. . . The courts recently have rejected an interpretation of the misconduct statute which would automatically ascribe misconduct to an incident of falling asleep. In keeping with this, the commission has distinguished the situation where, for example, an employee hides himself in order to sleep and not be caught, from a situation where an employee inadvertently falls asleep. Seelow v. Scapa Rolls (Neenah) LP, UI Dec. Hearing No. 00403067AP (LIRC Dec. 20, 2000).

Following a careful review of the record in this matter, the commission agrees with the administrative law judge that the employee's behavior was intentional. In particular, the employee consciously decided to reenter the dark room and sit in a chair behind the door where he was not readily visible. Once inside, he began to sleep. He had been previously warned against taking breaks in unauthorized locations and knew that the room was not a designated break area; it was also not a designated break time. If the employee was not feeling well, as he claimed, he should have notified his supervisor prior to taking the unauthorized break. For these reasons, the commission affirms the appeal tribunal decision as written.

cc:
Attorney Steven A. Burk
Attorney Jeffery R. Myer


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2006/08/22