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

RAMIZA ALKA, Employee

AURORA HEALTH CARE METRO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07606985MW


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 upon the applicable law and the record in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately six years as a housekeeper for the employer, a hospital. The employer discharged her on September 26, 2007 (week 39) for her failure to have disclosed, more than four years previously, a municipal ordinance charge and conviction for retail theft, and the issue is whether the employee's failure was misconduct for unemployment insurance purposes. The commission agrees with the appeal tribunal that it was not, and so affirms the appeal tribunal's ultimate conclusion to that effect.

On August 31, 2003, the employee was arrested on a municipal ordinance charge of retail theft. She was convicted of the municipal ordinance charge on September 8, 2003; at no time did she inform the employer of this conviction.

Every four years the employer conducts background checks on employees for criminal convictions. In September of 2007, during its quadrennial background check of employees, the employer discovered the employee's municipal ordinance conviction. Upon that discovery, the employer discharged the employee for having failed to notify the employer of the conviction, a failure the employer believed violated the employer's work rule requiring employees to notify the employer, within three working days, after the employee "is charged with or has been convicted (or pled no contest to) any crime."

Misconduct for unemployment insurance purposes under Wis. Stat. § 108.04(5) is the intentional and substantial disregard by an employee of standards an employer reasonably may expect of its employees. The commission cannot conclude that the employee's failure to notify the employer of her conviction meets this standard. First, the employer's policy on its own terms requires the reporting of convictions of crimes. The employee's conviction was for a municipal ordinance violation, however, a violation which is expressly characterized as non-criminal. Second, the employee had never received a single warning, for anything, during her six years of employment with the employer. Third, as the administrative law judge noted, that the employee's primary language is Albanian weighs against the conclusion that her failure to report the matter to the employer was an intentional disregard of the employer's interests. Fourth, the matter occurred more than four years before the employee's discharge. Given these factors, the commission concludes that the employee's failure was at worst an isolated instance of poor judgment, and not the intentional and substantial disregard of the employer's interests which is misconduct for unemployment insurance purposes.

The commission therefore finds that, in week 39 of 2007, the employee was discharged but not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The appeal tribunal decision is modified to accord with the foregoing and, as modified, is affirmed. Accordingly, the employee is eligible for unemployment insurance, if otherwise qualified.

Dated and mailed March 28, 2008
alkaram . urr : 105 : 1  MC 630.20

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission has rewritten the decision in this case because, although it agrees with the appeal tribunal's ultimate conclusion of no misconduct, the administrative law judge conflated two separate and distinct work rules in his analysis of the matter.

 


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