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

CHRISTINA I DELEON, Employee

SIGNATURE FLIGHT SUPPORT CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07600328MW


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 49 of 2006, if otherwise qualified.

Dated and mailed April 27, 2007
deleoch . usd : 178 : 1   MC 659.01

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the employee's conduct rises to the level of misconduct because of the duration that the employee was asleep while at work.

The circumstances described by the witnesses support a conclusion that the employee engaged in an inadvertent instance of falling asleep, and the commission has regularly held that such is not misconduct. Specifically, not every instance of sleeping on the job evinces the requisite intent to harm an employer's interests which is necessary for a finding of misconduct. Henderson v. Polaris Industries, Inc., UI Dec. Hearing No. 98201981EC (LIRC 4-29-99). While sleeping on the job is a very serious matter, it will not be considered misconduct absent some evidence that it was done in deliberate disregard of the employer's interests or that it amounted to negligence of a certain degree or recurrence. Neubauer v. Milwaukee School of Engineering Corp., UI Dec. Hearing No. 96607193MW (LIRC 2-18-98).

A 1988 Milwaukee County Circuit Court case also suggests that more is necessary for a finding of misconduct than occurred in the instant case. In Aiken v. Village of Elm Grove, UI Dec. Case No. 758-525 (Milwaukee Cty. Cir. Ct. 3-10-88), the court affirmed the commission's finding of misconduct for sleeping on the job. The finding of misconduct was upon the third occasion, which occurred when the employee drove his front end loader into a secluded wooded area. The court phrased the matter as the employee's having gone to sleep as opposed to falling asleep. Given the employee's driving of the loader to a secluded wooded area, the employee's actions in that case were deemed intentional.

The commission distinguishes the situation where an employee intentionally hides him or herself in order to sleep and not be caught, from the situation where an employee inadvertently falls asleep. In the present case, the employee apparently dozed off while sitting at the customer service desk, given the circumstances that would have to be considered inadvertent. In a similar case, where an employee was found dozing while standing and not leaning against anything (except holding onto her broom), the commission found that the discharge was not for misconduct. See Gilles v. Menard, Inc., UI Dec. Hearing No. 99200920EC (LIRC 10-20- 1999).

For these reasons as well as those contained in the appeal tribunal decision the commission affirms the finding that the discharge was not for misconduct.

cc:
Signature Flight Support (Milwaukee, Wisconsin)
Attorney Elizabeth Svehlek



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