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

BONNIE L BAUER, Employee

WALGREEN CO ILLINOIS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07607884MW


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 for approximately six years as a pharmacy technician for the employer, a pharmacy. Her last day of work and date of discharge was November 8, 2007 (week 45).

The issue to be decided is whether the employee's actions, which led to the discharge by the employer, constitute misconduct connected with the employment.

Company policy required the employee to verify a customer's address before completing a pharmaceutical sale. The employee was aware of this policy. She received written warnings on February 28, 2005; August 17, 2006; and February 27, 2007, for failing to complete this requirement. She also received a written warning and two-day suspension for failing to meet this requirement on February 28, 2007.

Between March 1, 2007 and November 6, 2007, the employee did not have any other incidents of failing to verify a customer's address. On November 7, 2007, she asked a customer to verify her address before completing a pharmaceutical sale. The customer said the first two numbers of her address, but then stopped to care for her crying baby. The first two numbers of the address were correct, so the employee completed the sale. Moments later, the employee realized she had given the wrong prescription to the customer. She immediately called the customer's name over the store's speaker system and notified her supervisor of her mistake. Moments later, the customer returned to the pharmacy counter, and the mistake was corrected. On November 8, 2007 (week 45), the employee was discharged for failure to verify the customer's address in violation of the company policy.

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 was being asked to perform a simple task, verify the customer's address. In each of the occasions, the employee's failure to do so resulted in the customer getting the wrong medication. In addition to the obvious potential for injury or death to the customer, the employee's actions required the employer to reimburse both customers for the prescriptions, constituted HIPPA violations because one customer was given information about medication being taken by another customer, and caused potential licensing issues for the employer. The commission does not find that the nine month gap before she again failed to verify an address detracts from the fact that the employee received three previous warnings and was being asked do what should have been routine and what was a simple task. While the employee indicated the customer was interrupted in giving the address, the employee did not get the complete address and as a result made another medication error.

The commission therefore finds that in week 45 of 2007 the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $4,097.00 for weeks 46 through 52 of 2007, and weeks 1 through 10 of 2008, for which the employee was not eligible and to which the employee was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived. Wis. Stat. § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04(13)(f), the overpayment was not the result of a departmental error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 45 of 2007, and until seven weeks elapse since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,097.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on November 11, 2007, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed March 14, 2008
bauerbo . urr : 132 : 8 : MC 689  MC 665.04

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility with the ALJ. The commission accepts the factual findings made by the ALJ but reached a different legal conclusion than that reached by the ALJ.

 

NOTE: Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

 

cc:
Walgreen Company - Deerfield, IL
Continental Inc.


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