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

CYNTHIA M ZIEHR, Employee

AM COMMUNITY CREDIT UNION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07605430RC


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.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 4, 2008
ziehrcy . usd : 145 : 1  PC 714.02

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer disputes the ALJ's finding that the employer failed to meets its burden of proving that the employee's discharge was for misconduct because it failed to present any attendance records at the hearing. The employer argues that it presented sufficient evidence of the employee's tardiness because it presented a summary of her attendance infractions, as well as disciplinary reports, absence reports and a timecard exception report. The employer also presented forms that tracked the employee's family medical leave. The employer's witness, the Director of Human Resources, did not indicate that the Director personally saw the employee return late from lunch. The employer's witness prepared a summary of the employee's alleged attendance infractions from payroll systems and disciplinary reports.

The reports in question are hearsay unless Wis. Stat. § 908.03(6), the so-called "business records" exception to the prohibition against hearsay evidence, applies.

"Business records, or any other records of regularly conducted activity, are admissible pursuant to this exception, which states:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

This provision allows introduction into evidence of such matters as the employer's computer records, but only if the stated conditions are satisfied. The information must be compiled at or near the time, and must come from a person with knowledge of the information compiled; in addition, the compilation or report must be part of a regularly conducted activity. Finally, these factors must be established by testimony from the custodian of the record or another qualified witness. Even when all these conditions are satisfied, the evidence is to be excluded if circumstances indicate a lack of trustworthiness in the evidence. If the employer's computer records have not been accepted in previous hearing, the commission can only guess that the exclusion was due to the employer's failure to satisfy one or more of the listed conditions of admissibility." Albrecht v. Life Style Staffing of Appleton, Hearing No. 98401933AP (LIRC October 5, 1998)."

In the present case, the report was complied for the purpose of this litigation. Information was gathered from discipline against the employee and disciplinary memos are generally considered to demonstrate that the discipline was received but not as evidence of the underlying conduct. While testimony based on personnel records might be considered business records, see Pieper Electric v. LIRC, 118 Wis. 2d 92 (Ct. App. 1984), the employer in this case did not have attendance charts, which are normally kept in the regular course of business for the purpose of paying workers for the time that they work, or timesheets or computerized printouts of card swipes that are generally created by the workers themselves, but rather, a memo prepared for the hearing and some disciplinary memos. The employee did not admit that she was indeed tardy on all the occasions listed on Exhibit 1. Further, and perhaps most significantly, the employee had worked for this employer for almost 11 years and apparently did not have significant disciplinary issues prior to her last year of employment. The employee had been taking medical leave because her daughter had mental health issues. The employee explained how her tardiness was generally related to unexpected or unavoidable problems caused by her daughter's health condition. The employee thus had valid reasons for being tardy on the occasions that she testified about. The employer allowed the employee to take medical leave and was willing to work with the employee, but ultimately discharged her because of attendance reasons. Even had the employer established that the employee was tardy on all the occasions that it claimed, and the employer may have had valid reasons for discharging the employee, her attendance infractions would have been for valid reasons and would not amount to misconduct connected with her work.

cc: Attorney F Thomas Olson

 


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