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

ELAINE Y McWASHINGTON, Employee

COUNTY OF RACINE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08604336RC


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 eight months as a certified nursing assistant at a skilled nursing facility for the employer, a county government. Her last day of work was November 22, 2007 (week 47). Her date of discharge was December 5, 2007 (week 49).

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.

The employer has a written attendance policy that requires workers to notify the employer if they will be absent. The attendance policy indicates that workers may be disciplined for attendance problems. However, the attendance policy does not specify the disciplinary steps. Instead, the attendance policy refers to the Discipline and Separation of Employment section of the Human Resources Policy Manual. The employer did not present a copy of the Discipline and Separation of Employment section of the Human Resources Policy Manual at the hearing. The employee was aware of the attendance policy.

On July 29, 2007, the employee received a verbal warning regarding attendance. The warning stated that the next disciplinary step would be a written warning. On September 11, 2007, the employee received a written warning regarding attendance. The warning stated that the next disciplinary step would be a suspension. On October 16, 2007, the employee received another written warning and three-day suspension for attendance. The warning stated that the next disciplinary step would be termination.

The employee was absent on November 3, 2007, with notice to the employer because she was ill. She was absent November 4, 2007, without notice to the employer and without a valid reason. The employee was tardy on November 22, 2007, without notice to the employer and without a valid reason. She was also absent on November 24 and 25, 2007, with notice to the employer, because her daughter was arrested.

On December 5, 2007 (week 49), the employer discharged the employee as a result of her attendance incidents on November 3, 4, 22, 24 and 25, 2007. The employer did not discharge the employee until December 5, 2007, because the attendance committee that reviews employee attendance meets on a weekly or bi-weekly basis. Additionally, the employer waits for 15 days after an attendance incident to see if the employee will apply for family or medical leave before imposing discipline for the attendance incident.

The employer argues that the employee was ultimately discharged for misconduct due to her attendance. The commission agrees.

Wis. Stat. § 108.04(5g) does not apply because the employee was not discharged specifically for failure to notify the employer of excessive absenteeism or tardiness. Additionally, the employer did not present a complete copy of the applicable written policies as evidence at the hearing.

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 given a verbal and written warning, and was then suspended. At each disciplinary step the employer informed the employee of what the next step would be. The employee had numerous attendance infractions, after her suspension. While the employer did not immediately discharge the employee, the employer provided a reasonable explanation for this delay. The delay was not unreasonable. Further, there was a similar delay for the employee's warnings. The employee should not have been under the assumption that the employer did not intend to discharge her if she continued to be tardy or absent after the suspension. The commission concludes that the employee's attendance record amounted to such a willful and substantial disregard of the employer's interests as to amount to misconduct connected with her work.

The commission therefore finds that in week 49 of 2007, the employee was discharged and that her discharge was for misconduct connected with the employee's work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for week 29 of 2008, amounting to a total of $248; for which she 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), she is required to repay such sum to the Unemployment Reserve Fund.

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 49 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 the sum of $248 to the Unemployment Reserve Fund.

Dated and mailed October 31, 2008
mcwasel . urr : 145 : 6  MC 605.01  MC 665.01  MC 665.04

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing her decision. The commission did not reverse based on a different assessment of witness credibility. Rather, the commission reversed the ALJ's decision because it reached a different conclusion when it applied the law to the facts found 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.

The employee requalified as of the first week claimed, week 22 0f 2008, but the wage cancellation as a result of this misconduct finding reduced her maximum benefit amount therefore her benefits exhausted in week 29 of 2008, resulting in a partial overpayment for that week and a total overpayment for all later weeks.

 


Ed. Note:  This decision is reproduced here as affected by a corrective amendment issued on December 8, 2008.

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