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

RAYMOND A GRILL, Employee

FUNCOLAND, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07201613EC


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 about fourteen months as a sales associate for the employer, a retail business. His last day of work was August 3, 2007 (week 31), when he was discharged.

The issue to be decided is whether the employer discharged the employee for misconduct connected with his employment.

The employer had a policy that prohibited falsification of any company document or record, including employment applications. The policy provided that a violation of the policy could result in immediate termination of employment. The employee received a copy of the policy when he was hired.

The employee initially was hired as a game advisor for the employer. That position did not require a criminal background check, as the employee was not issued a key. The employee filled out an initial application on which he disclosed that he had been convicted of a misdemeanor. The employer lost the employee's initial application form. He was asked to complete another application form in October of 2006. It was a busy time and the employee asked his supervisor if he had to fill out the entire form or just the personal information. The supervisor advised him to complete just the personal information. The employee provided his personal data on the form. The employee asked if he should include information about his misdemeanor. The employee's supervisor told him not to worry about it. The employee answered "no" to the question of whether he had ever been convicted of or pled guilty to a felony or misdemeanor. He did not provide any information regarding his employment history, education record, or references. He signed the application form beneath a statement that all of the answers on the application were true and complete and that any untruth, misleading answer, omission, concealment or failure to answer any question fully, completely and accurately would be grounds for termination of employment.

In the spring of 2007, the employee was promoted to a shift supervisor position. Because supervisors were issued keys, a criminal background check was conducted. The employee's misdemeanor conviction was revealed, along with several ordinance violations. The employer discharged the employee for failing to disclose the misdemeanor on the application form.

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 accurately complete the October of 2006 application. However, the employee was not attempting to mislead the employer or hide his conviction. The employee had previously disclosed such conviction on his original application and to his supervisor. Given such prior disclosures, and the supervisor's statement that the employee need not worry about the conviction, the commission finds that the employee at most committed an error in judgment. The employee's actions did not rise to the level of intentional and substantial disregard of the employer's interests.

The commission therefore finds that in week 31 of 2007, the employer discharged the employee but not for misconduct connected with his work 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 31 of 2007, if he is otherwise qualified.

Dated and mailed December 7, 2007
grillra . urr : 132 : 1 : MC 630.20

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding her impressions of witness credibility and demeanor. The parties appeared by telephone. The commission listened to the digital recording of the hearing as a part of its review of the case.

cc:
Attorney Carol Dittmar
Gamestop (N Maple Grove, MN)
Gamestop (Eau Claire, WI)


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