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

PATRICIA A STANK, Employee

PRIME CARE HEALTH PLAN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401968GB


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 25 of 2006, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $3,410.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on July 11, 2006 is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights. Benefits paid to the employee prior to the end of the week in which this appeal tribunal decision is issued will not remain charged to the employer's reserve account.

Dated and mailed November 25, 2006
stankpa . usd : 178 : 6   MC 605.091

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In her petition for commission review the employee disputes the ALJ's finding that she knew the consequences of her driving after revocation would be that she would be jailed if caught. She argues that the employer had tolerated absences due to legal problems cause by her health conditions in the past and that she had every reason to believe that it would grant her a leave of absence while she was in jail on this occasion.

The commission is not persuaded that the employee was blameless with regard to her arrest. The employee engaged in a series of actions which foreseeably led to her arrest and incarceration. While the employee may not have formed a deliberate intent to harm the employer's interests, she deliberately engaged in conduct contrary to the law. Moreover, the employer was entitled to regular attendance from the employee. It was not required to accommodate her absence from work even if it had done so in the past.

Generally, the commission has held that incarceration is not a valid reason for absence from work when the employee has intentionally engaged in the criminal conduct for which she was incarcerated. Joe D. Culp v. Consumers Steel and Supply Co. (Dane Co. Cir. Ct., Dec. 11, 1958); Schweikert v. Ganton Technologies, Ind., UI Hearing No. 91-606281 (LIRC March 24, 1992); Philon v. Guyers Builder Supply, Inc., UI Hearing No. 02603203MW (LIRC Feb. 11, 2003); Love v. Emmpak Foods, Inc., UI Hearing No. 99604845MW (LIRC Jan. 27, 2000); Carlson v. Hormel Foods Corp., UI Hearing No. 00005016JV (LIRC Feb. 22, 2001). See, also, Jackson v. LIRC and J. I. Case Co., Case No. 82-CV-1331 (Racine Co. Cir. Ct., Feb. 16, 1983).

Here, the employee was discharged for missing work for seven consecutive days. It is reasonable to assume that the employee knew that engaging in driving after revocation would result in legal consequences. She began the chain of events which resulted in her failure to report to work. The employee did not, therefore, have a valid reason for her absences. See, Philon, supra, (misconduct where employee absent without notice for three scheduled shifts due to his incarceration); Simmons v. Klemm Tank Lines, UI Hearing No. 02403991GB (LIRC June 30, 2003)(misconduct where employee absent for four scheduled shifts because arrested and incarcerated for admittedly being the aggressor in physical attack on his fiancée).

The commission has found misconduct under such circumstances even where the employee has provided notice to the employer of his absences (Lee, supra; Schweikert, supra; Jimenez, supra); and without regard to whether the employee had received prior warnings for attendance issues or was aware of the employer's attendance policy relating to extended absences (Jimenez, supra; Schweikert, supra; Philon, supra).

The commission therefore affirms the appeal tribunal decision that the employee was discharged for misconduct connected with her employment.


cc: Continental Inc.

 


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