JOSHUA D. WHITE, Employee
WALGREEN CO ILLINIOS, 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 makes the following:
The employee worked for four years (1), most recently as an assistant store manager for the employer, a large drug store chain. His last day of work was June 28, 2007 (week 26).
In fall 2006, the employee was promoted to the position of assistant manager at the employer's Wisconsin Rapids store location. He was then transferred to its Marshfield store location.
Contrary to the employer's policies, the store manager at the Marshfield location "created" a "slush fund" for balancing the tills. The employee learned of its existence and use approximately one to two months after he began working at the Marshfield store. If there was an overage, money was placed in the fund while if a shortage occurred, money was taken out of the fund. The existence of this fund was discovered during a cash/payroll audit by the employer's loss prevention supervisor. The assistant managers, in an effort to keep each other honest with respect to the slush fund, kept a tally of who was taking money from the slush fund or putting money from the fund in a cash drawer that was short. Money was allegedly missing from this fund and the employee was interviewed regarding it. The employee admitted taking 25 cents from the slush fund to purchase a soda. Although the employee argued that he returned 25 cents to the fund and told the employer this in the investigation, the employer's witnesses did not recall this.
The store manager was reprimanded for his creation of the slush fund. The employee was initially suspended pending investigation and then was discharged on July 2, 2007 (week 27) for violating the employer's theft policy.
Under Wis. Stat. § 108.04(5) a worker who is discharged is ineligible for unemployment insurance benefits if the discharge is for misconduct connected with the employment; thus, the issue is whether the employee was discharged for misconduct connected with his employment.
The employer contended that the employee's actions with respect to the 25 cents constituted misconduct connected with the employment. This contention cannot be sustained. In particular, except in those cases in which the alleged conduct is sufficiently egregious, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003). While theft from an employer is one of those actions which may justify discharge without warning or notice that an employee's job is in jeopardy, (see, Young v. Hondo, Inc., UI Hearing No. 03604582MW (LIRC Nov. 7, 2003), the commission has carved out an exception where, the theft is of product of de minimis value and certain other conditions have been met. See, Trinh v. Metcalfe Madison, UI Hearing No. 02007289MD (LIRC July 8, 2003). In addition to the de minimis amount involved, Trinh considered the additional factors of (1) the employer's ambiguous policy, (2) the employee's credible testimony that she did not consider that the employer would take this so serious as to discharge and (3) that the employee was a hardworking employee without any other incident in her approximate 10-year employment.
In this case, the Marshfield store manager's intentional disregard of the employer's cash handling policies by creating and using a "slush fund" instead of properly balancing tills essentially undermined the employer's cash policies. There were no rules regarding use of slush fund monies because the slush fund was not to exist in the first place. Thus, it was credible for the employee to believe that his use of 25 cents temporarily for a soda would not result in a discharge. These facts, together with the lack of any other violations over the course of his employment, lead the commission to find that the employee's discharge was not for misconduct connected with his employment
The commission therefore finds that in week 27 of 2007, the employee was discharged but his discharge was not for misconduct connected with the employment, within the meaning of Wis. Stat. § 108.04(5).
The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 27 of 2007, if otherwise qualified.
Dated and mailed December 7, 2007
whitejo . urr : 150 : 1 MC 630.16
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission did not confer with the administrative law judge prior to reversing the decision in this matter. The facts of this matter are largely undisputed and the commission reaching a differing legal conclusion on essentially the same facts found by the ALJ.
Further, although the ALJ mentioned during the hearing that he might review the employee's CCAP record post hearing, the record does not reflect such a review and the commission finds such use inappropriate given the court's own rejection of reliance on such records to prove a conviction beyond a reasonable doubt. See Johnston v. Villa Pines Living Center, UI Dec. Hearing No. 07002780MD (LIRC November 2, 2007), citing State v. Bonds, 292 Wis. 2d 344 (2006).
cc:
Walgreens Company (Wisconsin Rapids, Wisconsin)
Charles H. Armitage, Ph.D.
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]