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

LINDA M ACKER, Employee

STAFF MANAGEMENT INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07002110MD


An administrative law judge 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 administrative law judge. Based on its initial review, the commission remanded this matter to the hearing office for the taking of additional evidence. After consideration of the evidence presented at both hearings, the commission now makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked for the employer, a financial adviser, for six and a half years as an administrative assistant. Her last day of work was November 22, 2006 (week 47).

In 2005 the employee was found guilty of disorderly conduct because of a dispute with a male companion. The incarceration time was suspended and the employee was placed on probation.

The employee takes prescription sleeping medications, including ambien. The side effects of ambien include amnesia, sleep eating, sleep walking, and sleep driving. In May of 2006, the employee was arrested for driving under the influence of a controlled substance and was incarcerated for five days due to a probation hold. The employee testified that the incident resulted from sleep driving, while taking prescription ambien.

On November 22, 2006, the employee had a second incident of sleep driving. The employee could recall taking her medication and going to bed, only to wake up in a police car to learn she had gotten into an accident. The employee was again arrested and charged with operating a motor vehicle under the influence of a controlled substance, and was incarcerated on a probation hold. During her incarceration the employee and family members provided the employer with notice and updates about her absence. On December 5, 2006 (week 49), at which time she was still incarcerated, the employer discharged her for absenteeism.

The issue to decide is whether the employee was discharged for misconduct connected with her employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 missed over a week of work because she was incarcerated. The commission has long held that absence due to incarceration is not for a valid reason if the incarceration is because of the employee's fault. The standard for evaluating fault is whether the employee wilfully and intentionally started the chain of events which led to his or her being unavailable for work. Hyler v. Regal-Beloit Corp., UI Hearing No. 97002837JV (LIRC Aug. 27, 1997). In this case, the employee's absence was not due to her fault. The employee testified without rebuttal that she did not knowingly operate a motor vehicle while under the influence of a controlled substance, but was sleep driving as a side effect of the appropriate use of a prescription medication. The employee presented certified medical evidence which supports this assertion.

The commission can appreciate that the employee's absence from work created problems for the employer. However, where the employee did not intentionally engage in the conduct which led to her incarceration, and where she kept in appropriate contact with the employer during her absence, the commission concludes that the employee's discharge was not due to actions on her part which evinced misconduct.

The commission, therefore, finds that in week 49 of 2006, the employee was discharged and not for misconduct connected with her employment, 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 49 of 2006, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed December 19, 2007
ackerli . urr : 164 : 2   MC 605.091

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission conferred with the administrative law judge who held the original hearing. The administrative law judge had no credibility impressions to impart, but concluded that the employee needed to present evidence in support of her assertions that her arrest was not due to culpable conduct on her part. The employee did present such evidence at the remand hearing.

 

cc: Ameriprise Financial, Inc.


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