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

JOSEPH D CRUM, Employee

KELLY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06202075EC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. The department filed a timely petition for review.

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 had worked on and off from December of 2003 to April of 2004, for the employer, a staffing company. Following that he worked two days for the employer in 2005, March 9 and 10. He was attending orientation for a new job. He was discharged March 10, 2005 (week 11).

The issue to be decided in this case is whether the employee's discharge was for misconduct connected with the employment.

On March 4, 2005 (week 10), the employee had filled out an employment application. On the application the employee indicated that he had no charges pending. The employer then learned that the employee had charges pending. The employee was discharged for falsifying his application.

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 employee did not appear at the hearing to explain why he answered falsely on the application. An employer has the right to honesty. The employee's actions evinced an intentional and substantial disregard of the employer's interests and of the standards which the employer had a right to expect. The employee's discharge was for misconduct connected with his employment.

The second issue to be decided in this case is whether based on the actions of the parties and of the department, an overpayment was created, and whether the overpayment, if created, should be waived.

Department records reflect that the employee began a claim for benefits in week 30 of 2004, and claimed benefits each week from week 51 of 2004 through week 16 of 2005. The employee filed for benefits in week 11 of 2005 and did not indicate that he either worked and earned wages with this employer or that he was discharged by this employer. After week 16 of 2005, the employee stopped claiming benefits until he began a new claim in week 11 of 2006. In March of 2006, the employer filed a timely UCB-16 with the department indicating that the employee was discharged because he falsified his application. The employee then received benefits for weeks 11 of 2006 through week 22 of 2006. The department did not begin a fact finding investigation, or request additional information from the employer, until September 20, 2006, (week 38), after the employee stopped claiming benefits. The erroneous payment of benefits was not caused by the employer's failure to provide correct and complete information to the department during the fact-finding investigation. The overpayment was the result of fault on the part of the employee.

The commission further finds that the employee was paid benefits for each of weeks 11 through 16 of 2005, amounting to a total of $1,071; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), the employee is required to repay such sum to the Unemployment Reserve Fund.

DECISION

The decision of the administrative law judge is affirmed in part and reversed in part. Accordingly, the employee is ineligible for benefits beginning in week 11 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. The employee had requalified as of the first week of his subsequent benefit claim, week 11 of 2006. The employee is required to repay the sum of $1,071 to the Unemployment Reserve Fund.

Dated and mailed March 1, 2007
crumjo . urr : 145 : 1  BR 319.4

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The facts in the record were not in dispute as the evidence presented by the employer's witness was undisputed. Rather, the commission reversed the ALJ's finding that the employer was at fault for the overpayment of benefits as it was the employee who failed to disclose that he worked and earned wages from this employer and that he was discharged by this employer.

 

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:
Kelly Services Inc.
Daniel J. Larocque


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