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

PRECIOUS M WHITAKER, Employee

VAN RU CREDIT CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07607476MW


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 the employer, a collection agency, for approximately three months as a collector. Her last day work was October 11, 2007 (week 41), when she was discharged.

The employee was discharged following warnings for tardiness, excessive breaks and unproductive time. On September 25, 2007, she received a two day suspension. Thereafter, the employee had two occasions where her time records/call records showed excessive gaps which could not be accounted for by work activity.

On October 9, the employee went to the gas station on her break. She was eighteen minutes late returning to the employer's location. Later that day, the employee was off the telephone for 51 minutes comforting a friend. On October 11, 2007, the employee was discharged for violation of the employer's time policies.

The issue to be decided is whether the employee's discharge was for misconduct connected with her employment.

The employee argued that some of her unproductive time was spent on the internet doing skip tracing. However, the employer's witness stated this activity should take no more than a couple minutes and a new number would be reflected in the phone records. After her suspension, the employee incurred two more excessive breaks on a single day. The employee admits that she left work during an authorized 15 minute break to put gas in her car despite the fact that the station was seven minutes away. Thereafter she took an almost one hour break to console an upset co-worker. She did not discuss either of these occasions with her supervisor or seek permission for unproductive time.

Either of these admitted excessive breaks on October 9 might be excusable if the employee had not already received a written warning and a two day suspension for similar behavior. The employee was on clear notice that excessive breaks placed her job in jeopardy. The employee demonstrated deliberate indifference to the employer's interests by failing to conform her behavior to the employer's reasonable requirements

The commission therefore finds that in week 41 of 2007, the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $6,336; for which the employee was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1), and pursuant to Wis. Stat. § 108.22(8)(a), the employee is required to repay that sum to the Unemployment Reserve Fund.

Wisconsin 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), department 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, 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 department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 department 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 41 of 2007, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay $6,336 to the Unemployment Reserve Fund.

Dated and mailed March 20, 2008
whitapr . urr : 178 : 1 MC 658 MC 688

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission does not reverse based on a differing assessment of witness credibility. Instead, it reaches a different legal conclusion when applying the law to the facts.

 

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.C. 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: Van Ru Credit Corp. (Milwaukee, Wisconsin)


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uploaded 2008/03/24