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

LACY M KLEIN, Employee

M & M PUEBLO INVESTMENTS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002369MD


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a hotel, for four months as a human resource manager and banquet coordinator. The employee had previously worked for more than six years for the same hotel under the ownership of a predecessor of the employer. Her last day of work for the employer was March 10, 2006 (week 10).

The employer has a confidentiality policy which defines confidential information as including employee files and any information pertaining to an individual employee. The policy states that employees must not disclose confidential information to any unauthorized person inside or outside the company and that employees will be subject to disciplinary action up to and including dismissal for knowingly or unknowingly revealing information of a confidential nature.

The employee remained friends with the hotel manager at the predecessor employer, who left to work in the food and beverage department of a hotel in a nearby resort community when the employer took over the business. In an e-mail exchange between the employee and the former manager on March 9 or 10, 2006, the employee commented that the individual who had replaced the employee's friend as hotel manager "was just fired 2 minutes ago."

The employer learned of the e-mail and discharged the employee for violating its confidentiality policy with regard to employee information.

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

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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' within the meaning of the statute."

The employee was discharged for violating the employer's confidentiality policy. The employee claimed that she was unaware of the policy. However, whether or not the employee was familiar with the employer's confidentiality policy, as the human resource manager she should have realized that personnel issues were confidential. In fact, the record establishes that a few days prior to her discharge the employee reported another worker to the employer for revealing similar information to a human resource manager who was working for a competitor. Thus, the employee was clearly aware that it was inappropriate to reveal confidential employee information.

That said, the commission sees a distinction between the conduct which the employee reported to the employer and the conduct for which the employee was discharged. The employee's remark about the general manager, while inappropriate, was made in the context of an e-mail to a friend and was in the nature of off-hand banter. The employee credibly testified that she did not view her friend, who worked in the food and beverage department of a hotel located in another community, and who was not a manager, as being in a position to hire the manager who had been discharged. The employee further indicated that it did not occur to her her actions could present a confidentiality issue and that, had she realized this, she would not have sent the e-mail.

Under all the facts and circumstances, the commission believes that the employee exercised poor judgment in telling her friend that the manager had been discharged. However, the commission concludes that the employee was not attempting to undermine the employer's interests and that her actions fell short of misconduct.

The commission, therefore, finds that in week 10 of 2006, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 10 of 2006, provided she is otherwise qualified. The employee is not required to repay the sum of $1,855 to the Unemployment Reserve Fund.

Dated and mailed September 22, 2006
kleinla . urr : 164 : 1  MC 687  MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge had no credibility or demeanor impressions to impart that affected her decision in this case.

 


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