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

YER YANG, Employee

XCEL ENERGY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08201374EC


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 11 months as customer contact representative for the customer call center of the employer, a power company. Her last day of work was June 13, 2008 (week 24), when she was discharged.

The employee's job as customer contact representative was to receive inbound calls of customers with various problems including billing issues, reports of electrical outage and similar matters. The employee was trained to handle emergency calls. Instead of helping a customer directly, the employee had the technical capacity to place a caller on hold and then place the call back in queue for another representative to handle.

On June 11, 2008, the employee's team leader received a complaint that the employee hung up on a customer. He confronted the employee, she conceded that it happened and he "coached" her about it. Later that same day, the team leader received a report of transferred calls per representative in May 2008. The employee was one of 11 experienced workers with a high call transfer rate; the employee's call transfer rate was 14.64 percent. The range for the eleven workers was 14.05 percent to 25.82 percent. Based upon this report, the team leader investigated the record of the calls transferred by the employee on June 11.

The investigation reflected that the employee was "cold transferring" some calls, essentially placing them back in the queue from which they just came. One of the calls on June 11 that was "cold transferred" was a notification of a tree limb that fell onto some power lines and was lying in the caller's driveway. The team leader further reviewed the calls transferred by the employee during the last ten days in May; this review reflected ten electrical emergency calls that were "cold transferred" by the employee instead of being handled by her.

The employee did not dispute the team leader's testimony regarding the transferring and indicated that she might "cold transfer" when a customer was angry, when she thought another worker could handle the matter better, or when she believed another worker transferred the call to her. She also testified that she had been transferring calls in a similar manner throughout her employment.

The employer discharged her on June 13, 2008, without prior warning, for inappropriately transferring calls.

Department records reflect that the employee initiated a claim for unemployment insurance benefits on June 16, 2008. The employee reported a discharge with the employer and the employee was mailed a questionnaire regarding the discharge. The questionnaire was to be returned within seven days of its mailing and the employer timely faxed a response on the sixth day after it was mailed to the employer. The employer explained the reason for discharge specifically, the transferring of emergency calls and hanging up on a customer. In an attempt to seek additional information, the adjudicator left a message with the employer's representative requesting information as to whether there were prior incidents and warnings and if so the details of those prior incidents and warnings. The adjudicator requested that a response be provided by 9:00 a.m. central standard time on Monday, July 7, 2008. The employer did not respond but there were no prior incidents or warnings that led to the employer's decision to discharge. The adjudicator issued a determination allowing unemployment insurance benefits. The employer appealed and the appeal tribunal affirmed the no misconduct finding. The employer petitioned the matter.

Section 108.04(5) of the Wisconsin Statutes denies unemployment insurance benefits to a worker who is discharged for misconduct connected with the employment. Thus, 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.

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.

Unless a worker's conduct is sufficiently egregious to relieve the employer of its responsibility to make the worker aware that his/her job is jeopardized by the conduct, the commission generally holds that a prior warning or reprimand is necessary to support a finding of misconduct. Mock v. Hard Rock Sawing & Drilling Specialists Co., UI Hearing No. 06201420EC (LIRC November 30, 2006).

In this case, the commission is satisfied that the employee was discharged for a failure that was sufficiently egregious and serious as to relieve the employer of its responsibility to warn the employee that such conduct jeopardized her employment. Specifically, the employee was trained to handle emergency service calls. Despite this training, when the employee received a call of a potentially dangerous situation, she transferred the customer back into the queue instead of assisting the customer. This was a serious violation and could have had tragic results. Thus, the commission finds that her failure constituted misconduct connected with her employment.

Since the employee filed for and received unemployment insurance benefits based upon the determination and appeal tribunal decision which allowed benefits, the next issue to the commission is how to handle the $632 in unemployment insurance benefits that were erroneously paid to the employee.

While Wisconsin Statute sections § 108.04(13)(c), (e), (f), and (g) provide that no overpayment will be created when benefits are paid erroneously with fault on behalf the employer and no fault on behalf the employee. In this case, while the employer did not respond to the request for additional information, there was none to be provided. The employer provided the reasons for discharge and prior warnings were not a factor and did not exist. The employer was not at fault. Thus an overpayment is created.

The commission has reversed both the determination and the appeal tribunal decision because it reaches a different legal conclusion as to the seriousness of the employee's violation. The differing legal conclusion reached by the adjudicator and ALJ was not departmental error and, although the employee was not at fault in the overpayment of benefits, she is required to repay the overpaid monies pursuant to Wis. Stat. § 108.22(8)(c)2.

The commission therefore finds that 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 erroneous payment of benefits was not due to employer fault and an overpayment shall be created within the meaning of Wis. Stat. § 108.04(13)(c).

The commission finally finds that waiver of benefits 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 department error. See Wis. Stat. § 108.22(8)(c)2.

DECISION

The appeal tribunal decision is modified to conform with the above findings and, as modified is reversed. The employee is ineligible for unemployment insurance benefits beginning in week 25 of 2008 and until seven weeks have elapsed from the discharge and the employee has earned 14 times her weekly benefit rate and subsequent covered wages. The employee was overpaid unemployment insurance benefits totaling $632.00 which she must repay.

Dated and mailed November 26, 2008
yangyer . urr : 150 : 1 MC 689 MC 688.1 MC 665.04 MC 699.05  BR 319.4

/s/ James T. Flynn, Chairperson

/s/ Ann L. Crump, Commissioner

 

 


ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority opinion in this matter. Specifically, while I do not condone the employee's actions and they are a serious breach of her duties and responsibilities to the employer, I do not find that they rose to the level of misconduct as that phrase has been defined. Specifically, the record reflects that the employee was not the only individual engaging in the transferring of calls and given the prevalence of such conduct, I believe she was entitled to a prior warning and suspension to apprise her of the seriousness of the conduct and the fact that it did jeopardize her employment.

/s/ Robert Glaser, Commissioner

 


 

cc: Xcel Energy (Eau Claire, Wisconsin)


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2008/12/29