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

CLAUDETT Y DE LEON, Employee

SCHNEIDER NATIONAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06401797GB


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked about one year most recently as a security service technician for the employer (1),  a transportation company. Her last day of work was June 14, 2006 (week 24), when she was discharged.

The employer has adopted a policy on electronic security. Under the policy, all employees are expected to use the employer's electronic systems in a professional, ethical and lawful manner and only for business purposes. The policy also provides that any activity that can be viewed as offensive, abusive, inappropriate, harassing, discriminatory, or conducted for personal enterprise is strictly prohibited.

During the latter part of her employment, the employee forwarded an email to a co-worker. After the co-worker received the email, the co-worker informed the employer that the email was offensive. The employer then conducted an investigation of the use of its email system and discovered that the employee had forwarded three separate emails to others. The emails contained content that was offensive and inappropriate in the workplace. On June 14, 2006 (week 24), the employer discharged the employee.

The issue to be decided is whether the employee's actions, which led to the discharged by the employer, constituted misconduct connected wither employment.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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 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 or her job is in jeopardy or will be if he or she engages in the subject conduct. (2)   In this case, the commission finds that the employee's conduct was so egregious that no prior warning was necessary.

The employee was aware of the employer's policy. At the time the employee forwarded the emails she knew it was not right to do so. The employee did not engage in a one time error in judgment. The employee forwarded the emails to numerous individuals on a number of occasions in November of 2005, February of 2006, March of 2006, April of 2006, and May of 2006. Given the clearly offensive subject matter of the emails, and the number of times the employee forwarded those emails, the commission finds that the employee's actions demonstrated an intentional and substantial disregard for standards of behavior the employer had a right to expect of the employee.

The commission therefore finds that in week 24 of 2006 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $7,506.00 for weeks 24 through 47 of 2006, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 24 of 2006, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $7,506.00 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed December 6, 2006
deleocl . urr : 132 : 1 :  MC 690

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The ALJ indicated that the employee was meek acting, and sincerely embarrassed and remorseful of her conduct. The ALJ also indicated that he had no issues with the employer's credibility. The commission disagrees with the ALJ's conclusion that her conduct was not serious enough, without prior warning, to amount to misconduct.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government. Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 

cc: Schneider National, Inc. (Green Bay, Wisconsin)



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Footnotes:

(1)( Back ) As a result of a business transfer on November 29, 2005, the correct employer of record is Schneider Enterprise Resources LLC, UI account number 851933.

(2)( Back ) See, e.g., Roloff v. U S Cellular, UI Dec. Hearing No. 06400680AP (LIRC July 27, 2006); Goodwin v. QTI Professional Staffing of Milwaukee Inc., UI Dec. Hearing No. 06602386RC (LIRC July 26, 2006); Fuss v. Pick N Save, UI Dec. Hearing No. 05403409AP (LIRC May 31, 2006); Hintz v. Nate's Lawn Maintenance Inc., UI Dec Hearing No. 06600287WB (LIRC April 20, 2006); Tolliver v. Wendy's Old Fashioned Hamburgers, UI Dec. Hearing No. 05602052RC (LIRC June 15, 2005); Williams v. Sunshine Cleaners Inc., UI Dec. Hearing No. 05600483MW (LIRC May 24, 2005); Jackson v. The Wackenhut Corporation, UI Dec. Hearing No. 05600559MW (LIRC May 12, 2005); Doherty v. Plymouth Lubrication Inc., UI Dec. Hearing No. 04605049MW (LIRC Feb. 25, 2005); Kaiser v. Wausau Steel Corp., UI Dec. Hearing No. 04200083WU (LIRC July 8, 2004); Hoppe v. Perfecseal Inc., UI Dec. Hearing No. 04400033OS (LIRC June 29, 2004); Cadotte v. Prime Care Health Plan, UI Dec. Hearing No. 03608737MW (LIRC July 7, 2004); Holcomb v. Catholic Family Life Insurance, UI Dec. Hearing No. 03605434MW (LIRC March 18, 2004); Kreuzpaintner v. Menards, UI Dec. Hearing No. 03605888MW (LIRC March 16, 2004); Metzger v. Casey's Marketing Co., UI Dec. Hearing No. 03002478BD (LIRC Nov. 7, 2003); Ward v. Diamond Detective Agency Inc., UI Dec. Hearing No. 03604533MW (LIRC Nov. 5, 2003); Mullan v. The Equitable Bank SSB, UI Dec. Hearing No. 02610586MW (LIRC June 15, 2003); Smallcombe v. The Noodle Shop Co., UI Dec. Hearing No. 02608958 (LIRC June 10, 2003); Kahl v. Knight Mfg. Corp., UI Dec. Hearing No. 02008166JV (LIRC May 16, 2003); Ness v. Deli-More, UI Dec. Hearing No. 02403062GB (LIRC April 10, 2003); Skavland v. Oldenburg Group Inc., UI Dec. Hearing No. 02608860MW (LIRC April 4, 2003); Munoz v. LaCosta, Inc., UI Dec. Hearing No. 02607640MW (LIRC April 4, 2003); Hainz v. Nelson Industries, Inc., UI Dec. Hearing No. 00003095MD (LIRC Oct. 3, 2000); and Marcolini v. Alma Public Schools, UI Dec. Hearing No. 78-20774EX (LIRC May 29, 1979).

 


uploaded 2006/12/15