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

EILEEN M FAWLEY, Employee

MENARD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08201823EC


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed January 23, 2009
fawleei . usd : 178 : 1   PC 714.02  PC 714.07

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In its petition for commission review, the employer argues that the ALJ erred when he did not give greater weight to its summary of the employee's arrival times as recorded on its GPS system. In particular, it argues that it would be contrary to Wis. Admin. Code DWD chapter 140 to exclude these reports.

The ALJ allowed the reports in evidence. However, chapter 140 provides that no finding may be based solely on hearsay. The records offered by the employer were complied for the purpose of this litigation. Information was apparently gathered from GPS records kept by the employer by an individual who did not appear at the hearing to explain how it was compiled and attest to its accuracy. The reports in question are hearsay unless Wis. Stat. § 908.03(6), the so-called "business records" exception to the prohibition against hearsay evidence, applies.

The employer accurately notes that statutory and common law rules of evidence that are applicable to courts of record are not controlling with respect to UI hearings. In fact, Wis. Admin. Code DWD § 140.16 provides that the ALJ shall secure the facts in as direct and simple a manner as possible and that evidence having reasonable probative value is admissible but irrelevant, immaterial, and repetitious evidence is not admissible. The rule also provides that hearsay evidence is admissible if it has reasonable probative value but no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under Chapter 908, Stats.

The commission would refer the employer to Wis. Stat. § 908.03(6), the so-called "business records" exception to the prohibition against hearsay evidence. Business records, or any other records of regularly conducted activity, are admissible pursuant to this exception, which states:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

This provision allows introduction into evidence of such matters as the employer's computer records, but only if the stated conditions are satisfied. The information must be compiled at or near the time, and must come from a person with knowledge of the information compiled; in addition, the compilation or report must be part of a regularly conducted activity. Finally, these factors must be established by testimony from the custodian of the record or another qualified witness.

This case is analogous to Ziehr v. AM Community Credit Union, U I Hearing No. 07605430RC (LIRC Jan. 4, 2008), which held:

While testimony based on personnel records might be considered business records, see Pieper Electric v. LIRC, 118 Wis. 2d 92 (Ct. App. 1984), the employer in this case did not have attendance charts, which are normally kept in the regular course of business for the purpose of paying workers for the time that they work, or timesheets or computerized printouts of card swipes that are generally created by the workers themselves, but rather, a memo prepared for the hearing and some disciplinary memos. The employee did not admit that she was indeed tardy on all the occasions listed....

In this case, the employee denied that the employer's summaries accurately reflected the time she arrived at the Plover store. The employer's documents and testimony do not persuade the commission that she was late on all the occasions alleged. The employer was aware that this was a dispute. It failed to provide sufficient non-hearsay evidence to overcome the employee's testimony.

The employer's objection that nothing short of expert testimony from the individuals outside its company would have satisfied the ALJ is unfounded. If the employer had brought the individual who created the records and he could credibly testify to the source of the information and the accuracy of the contents. The employer also should have included the records themselves from which the summary was prepared. The employer bears the burden of proving misconduct. It failed to provide persuasive non-hearsay evidence to overcome the employee's testimony that she was not late. Therefore, the commission affirms the appeal tribunal decision that the discharge was not for misconduct.



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