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

MARK S HEINRICHS, Employee

KWIK TRIP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002084MD


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 eligible for benefits beginning in week 15 of 2006, if otherwise qualified.

Dated and mailed November 10, 2006
heinrma . usd : 115 : 2  MC 697 MC 630.16

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee worked three months as a food service specialist for the employer, a convenience store.

On April 6, 2006, the employee, who was scheduled to begin his shift at 4:00 a.m., arrived around 3:30 a.m. and began working. The employee did not clock in for his shift until 4:00 a.m.

Prior to clocking in, the employee smoked a cigarette outside the store. He then entered the store and began frosting doughnuts without wearing the required plastic gloves. The employer contends the employee had also failed to wash his hands, but the employee denies this.

Part of the employee's responsibilities included separating the leftover bakery items, including doughnuts, from the fresh ones; discarding those leftovers considered spoilage or waste; and frosting the fresh doughnuts and placing them in the display case.

On April 6, the employee, while dealing with the leftover doughnuts, took bites from a few of them, and then threw the remainder of these waste doughnuts away.

The employee's supervisor was present in the store at 3:15 a.m. and observed the employee engage in each of these actions, but the employee was not aware of his presence. A co-worker was also present, and the employee was aware of her presence.

The employer's time management policy (exhibit #2) requires workers to clock in and out for all hours worked, in order to comply with the provisions of the Fair Labor Standards Act (FLSA). This policy states that violation of any of its requirements "will result in disciplinary action up to and including termination."

The employer's food service sanitation policy (exhibit #3) requires workers to wear disposable gloves when handling ready-to-eat foods, and to wash one's hands after smoking. This policy states that violation of any of its requirements will subject the violator to a progressive discipline process entailing verbal warning, written warning, 1-day suspension, 3-day suspension, and termination.

The employer's loss prevention policy (exhibit #4) provides that "all merchandise must be paid for prior to consuming;" "spoilage or...waste may not be consumed, removed from the store, or given to customers;" and workers may not ring up their own purchases. This policy states that its violation "will result in discipline up to and including termination."

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); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). Here, the employer failed to show either that the employee, either through prior warning, or through the language of the employer's policies, would have had reason to be aware that engaging in any of the three actions at issue here, alone or in combination, would result in his immediate termination.

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 continued to engage in it.

The employee did not engage in time theft, i.e., he actually worked hours for which he was not seeking credit. The employer, however, had a legitimate interest, given the requirements of the FLSA, in having its workers correctly record their work time, and the employee failed to do this. His actions, however, would not reasonably be considered to be the type of egregious violation of the employer's time management policy which would justify immediate termination.

Depending upon the version of events credited here, the employee violated the employer's food service sanitation policy once (gloves only) or twice (gloves and handwashing) on April 6. However, even if he had engaged in two violations that day, the consequence, pursuant to the enforcement provisions of the policy, would have been a warning, not immediate termination.

Finally, the employee took a few bites of leftover waste doughnuts.

Theft from an employer is one of those actions which may justify discharge without warning or notice that an employee's job is in jeopardy. See, Young v. Hondo, Inc., UI Hearing No. 03604582MW (LIRC Nov. 7, 2003). The commission has, however, carved out an exception where, as here, the theft is of product of de minimis value. See, Trinh v. Metcalfe Madison, UI Hearing No. 02007289MD (LIRC July 8, 2003).

The commission agrees with the administrative law judge that the employer failed to sustain its burden to prove misconduct.

 

cc: Kwik Trip, Inc., Oregon, WI 53575



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