JAY D ALBRECHT, Employee
FARM & FLEET OF MONROE INC, Employer
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.
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits as of week 27 of 2005, if otherwise qualified.
Dated and mailed December 5, 2005 [Note
regarding subsequent history]
albreja . usd : 145 : 1 MC 605.091 PC 740
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
In its petition for commission review the employer asserts that the employee's three-day absence was not for a valid reason. The employer argues that the employee intentionally engaged in criminal behavior which led to his incarceration. The employer argues that as such, the employee's discharge was for misconduct connected with his work. However, the employer presented no evidence to support a conclusion that the employee engaged in intentional criminal behavior. The employer merely reported that the employee was absent because he was incarcerated. The employee testified that he was incarcerated because he was involved in an accident with a police vehicle. The employee testified that the police officer was at much at fault as he was. The employee did not testify that he intentionally engaged in any kind of criminal activity that resulted in his arrest. As such, the employer failed its burden of establishing that the employee's discharge was for misconduct connected with his work.
NOTE: The employee did indicate that he might be charged with two or three felonies and up to three misdemeanors, and that these were apart from any traffic violations. If the employee is ultimately convicted of any criminal behavior that brought on his incarceration and therefore his absence from work, the employer should bring this information to the attention of the commission within two years of the date of this decision. The commission will then, based upon the employer's submission, determine whether to reconsider its decision based upon this new information.
Attorney George Steil, Jr.
Farm & Fleet of Monroe
Note regarding subsequent history: The employer subsequently submitted a request for the commission to re-open and reconsider the case, submitting documents indicating that the employee had pled “no contest” to four misdemeanors stemming from the incident in question. The commission responded with a letter denying the request to reopen. The commission's letter stated:
Although the commission has in the past granted requests, pursuant to Wis. Stat. § 108.09(6)(c), to set aside and reissue its decisions when an employee has pled guilty to a relevant offense or has been convicted after a not guilty plea (see, Krispin v. Ameri-King/Burger King, UI Hearing No. 00001536WU (LIRC May 10, 2000); Puckett v. Samuels Recycling Co., UI Hearing No. 95000269JV (LIRC Sept. 21, 1995)), the commission has declined to do so when conviction is based on a no contest plea. The Commission has relied on In Matter of Estate of Safran, 102 Wis.2d 79 (1981)(a criminal conviction based on a plea of no contest is generally not admissible in a subsequent civil action as evidence of the facts on which the conviction is based) for refusing further action based on no contest convictions. The commission declines to take further action here, since the certified judgment of conviction was imposed pursuant to a no contest plea, rather than a guilty plea or following a trial in which the employee had been found guilty of intentional behavior that resulted in his absence from work.
Appealed to Circuit Court. Reversed and remanded, August 15, 2006. Appealed to the Court of Appeals. Circuit Court decision reversed sub nom. Farm & Fleet of Monroe v. LIRC and Albrecht (Ct. App. Dist. IV, April 26, 2007, unpublished) and cause remanded for LIRC to reconsider decision not to reopen, . [Summary of Court of Appeals decision] [LIRC decision on remand]
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