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

KATHY A KLETTKE, Employee

COUNTY OF WAUPACA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402675AP


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, except that it makes the following modifications:

In the first sentence of the first paragraph after "FINDINGS OF FACT and CONCLUSIONS OF LAW" delete the word "three" and substitute therefor: "13."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 42 of 2006 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.

Dated and mailed May 16, 2007
klettka1 . umd : 145 : 9  PC 714  MC 630.09

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The employee argues that the appeal tribunal decision was based on the use of evidence derived from improper and illegal means, specifically attaching a GPS tracking device to the employee's automobile without the employee's consent in order to track her movements. The commission agrees that evidence derived from the use of a GPS tracking device in such a manner is improper and may not be relied upon for the following reasons:

1. The planting of a GPS tracking device upon a person's automobile without their consent is arguably a trespass upon personal property and as such unlawful. The employer's argument that it is unaware of any "law, statute, policy or anything that requires consent to track a vehicle" (Synopsis, pp. 21, 22) is a disingenuous attempt to bootstrap ignorance of the law into a justification for its violation.

2. What is the relevance of the location of a person's vehicle if we cannot establish that the person was in the vehicle? There was no eyewitness to who was using the vehicle to which the GPS tracking device was attached.

3. What is the reliability of these GPS tracking devices? The investigator testified that he was not an expert in the (GPS) technology and he could not verify the scientific veracity of the GPS data. (Synopsis, p. 24)

For these reasons the commission is loath to permit evidence derived in such a fashion to support a finding of misconduct in this case. That being said however, the commission does find other admissible evidence that is more than sufficient to establish that the employee intentionally engaged in time theft by claiming compensation for hours that she did not work.

Exhibit No. 3 amply demonstrates, in the employee's own handwriting, that she claimed comp time for her lunch break on June 16, 2006. In Exhibit No. 5 the employee, in her own handwriting, claimed 1 hour of comp time for "on-call" services at the Basina home on September 2, 2006. However, a co-worker testified that based upon her own observation the employee was not present at the Basina home during the time claimed by the employee. Exhibit No. 8 demonstrates that the employee claimed 6.5 hours worked in the office on October 2, 2006 yet was present for only 6 hours.

The evidence in the record amply supports the ALJ's conclusion that the employee was falsifying her timesheets in an attempt to obtain payment for time she did not work. Further, the employee had been warned that she needed to accurately report her time. The employee's actions in this regard demonstrated such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

cc: Attorney Mark F. Yokom


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