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

LORNA K WALLIN, Employee

FRANCISCAN SKEMP MEDICAL CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07000980LX


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 more than three years as a licensed practical nurse (LPN) for the dermatology department of the employer, a health care facility. She was discharged on January 24, 2007 (week 4).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

The employee was interviewed and trained by Cyndi Maxwell, whose working title was Lead LPN; and worked directly with Greg Buttolph, a physician's assistant. Neither Maxwell nor Buttolph was in the employee's supervisory chain of command but they would reasonably be considered her superiors.

Cathie Hanson, the Director of Nursing Operations, was the employee's immediate supervisor.

The employee submitted her leave requests to Maxwell who would forward them, after determining whether sufficient leave time was available, to Hanson for final approval.

In September of 2006, the employee asked Maxwell and Buttolph if there would be any problem if she left the work site for 30 minutes on some Monday and Thursday mornings to transport her nephew from one high school to another. Both said it would be fine as long as it was not too busy at the time. The employee would ask Maxwell and Buttolph for permission each Monday or Thursday before leaving the work site to transport her nephew. There were certain Mondays and Thursdays, i.e., during school holidays or when her nephew was ill or had other transportation, when the employee did not leave the work site to transport him.

The employee was required to record her work time on the employer's computerized Kronos system. This system automatically deducted 30 minutes each day for the lunch break. Workers were permitted to override this deduction if they did not take a break for lunch.

The employee did not log in or out of the Kronos system when she left the work site to transport her nephew, but she did work through her lunch hour on those days without overriding the lunch hour deduction. Consequently, even though the Kronos system would not reflect her actual hours of work those days, it would accurately reflect the total number of hours she worked.

The employer alleges that the employee was observed away from the work site the morning of January 11, 2007, but overrode her lunch hour deduction that day, i.e., that the employee actually worked 30 minutes less than she claimed on January 11.

The employee, however, testified that she could not recall whether January 11 was one of the days she left work to transport her nephew; and the employer's testimony that she was observed away from the work site that morning is uncorroborated hearsay.

The employee was suspended for investigatory purposes on January 15, and discharged on January 24, 2007, for allegedly violating the employer's time recording/notice requirements.

The employee testified that she did not know that she was required to have her supervisor's permission, or to log out of the Kronos system, whenever she left the work site during scheduled work hours.

The employer's work rules (exhibit #2) state as follows as relevant here:

VII. Performance issue Regarding Attendance and Time Off...

G. Failure of employees to notify their manager (or designee) of any time off may result in performance counseling up to and including termination of employment....

H. Employee must not:...

3. Record (log in/out) their work time or non-work time falsely or inaccurately.

Employees who commit any of these actions will be terminated from employment.

The employee had reason to be aware of these work rules.

The commission has always placed special emphasis on the integrity of the time/payroll system. See, e.g., Morales v. Prime Care Health Plan, UI Hearing No. 97605882MW (LIRC Aug. 26, 1998) ("While the employee was only 19 minutes late for work, which might not amount to misconduct, the commission considers accurate time reporting to be very serious. The commission finds that the employee's falsification of his time card amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with his work."); Poindexter v. Northwest General Hospital, UI Hearing No. 98606560MW (LIRC Jan. 27, 1999) (the fact that the employee knowingly recorded on his time card that he left work at 2 pm even though he actually left at noon is intentional falsification of his time record and an intentional violation of standards of behavior the employer has a right to expect).

The commission has also consistently held that an employer must show that the employee intended to violate the integrity of the time/payroll system in order to establish misconduct. (Ostrowski v. Royalton Manor, UI Hearing No. 012012013EC (LIRC Dec. 21, 2001) (misconduct by time theft not demonstrated where a 23-year employee had arrived early for work, not clocked in for these early hours, and had run a short personal errand for a comparable amount of time later in the day without clocking out); Cornils v. Ultra Mart Foods, Inc., UI Hearing No. 02402775AP (LIRC March 11, 2003)(misconduct by time theft not demonstrated where a 20-year employee, to avoid overtime costs for an employer with financial problems, did not record extra hours in week worked, and compensated by recording full time hours the next week but working fewer).

Here, the employer failed to establish any intent by the employee to commit time theft. The record shows, as in Ostrowski and Cornils, supra., that the employee made up the time she was away from the work site. Moreover, the employee did not attempt to hide her actions, and, in fact, provided notice to Maxwell and Buttolph each time she left work to transport her nephew. See, Krueger v. Voith Paper Fabrics Appleton, Inc., UI Hearing No. 06401483AP (LIRC Sept. 15, 2006)(leaving work site during scheduled shift to run personal errand without permission and without clocking out, and then attempting to cover it up, was misconduct); Rogers v. Hutchinson Technology, Inc., UI Hearing No. 06202000EC (LIRC March 21, 2007) (claiming more hours than actually worked misconduct); Olson v. Alltrux Leasing & Paclease, UI Hearing No. 02007848WK (LIRC May 15, 2003) (leaving work site during scheduled hours to run personal errand without making up time misconduct).

The employee did, however, fail to record her actual work hours on the Kronos system, and did fail to provide notice of her actions to her immediate supervisor. The commission considers these failures to be errors in judgment which did not rise to the level of misconduct. It is not clear from the record that the Kronos training provided to the employee emphasized or even explained that she was required to log out each time she left the work site even when she made up the time she missed later in the same work day. Although the employer's work rules prohibit recording work time (logging in/out) "falsely or inaccurately," it was not unreasonable for the employee to assume that the manner in which she was recording and making up her time was not false or inaccurate since she was not claiming more hours than she had worked. Moreover, although the employee did not seek permission from, or provide notice of her actions to, her immediate supervisor, it was also not unreasonable for her to believe that providing notice to, and seeking permission from, the LPN who served as her lead worker, as well as the physician's assistant to whom she was assigned, would be sufficient, particularly given the work rule language that notice is to be given to a worker's manager or his or her "designee."

The commission therefore finds that in week 4 of 2007, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but that she was discharged and her discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).


DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 4 of 2007, if otherwise qualified.

Dated and mailed June 22, 2007
wallilo . urr : 115 : 1    MC 630.09

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses based upon their demeanor, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Attorney Ellen Frantz


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2007/06/25