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

NAKIA T NELSON, Employee

M & I MARSHALL & ILSLEY BANK, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08004031JV


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 about five years as a teller for the employer, a bank. She was discharged on September 9, 2008 (week 37).

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 employee returned from a maternity leave in April 2008. She later applied for a subsidy from the Beloit Housing Authority to assist her in renting a house for herself and her three children. As part of that process the employee had to verify her employment. The employer does not verify employment at branch level, and such a request was handled by human resources. The employee was familiar with the bank procedure used to verify employment to outside parties.

The employee wrote a letter on the employer's letterhead stating that "Nakia Nelson returned to work on July 14th as a part-time Customer Service Representative II." The letter accurately listed her compensation, of $11.62 per hour, but indicated she worked only 20 hours per week. The employee was employed for 40 hours per week. The letter also stated that "If you should have any questions, please contact me at" and listed the phone number to the employee's workstation, not to the employee's supervisor. The letter was signed "Sincerely, Sarah Daniels, Customer Service Manager." The employee did not know why she wrote the letter herself instead of referring the matter to human resources. The employee testified that she simply made up the name "Sarah Daniels." The employee then sent the letter to the housing authority. The bank thereafter discovered what the employee had done and discharged her for violating its Code of Business Conduct and Ethics. The employee had previously received two unrelated written warnings.

Banking is a highly regulated industry and the employer has a code of ethics because tellers have access to the bank accounts and financial information of many people. The employer's policy states that the employer's resources should be used only for legitimate business purposes and for the benefit of the company. It further states that the employer's equipment should not be used for non-company business although it does allow for some incidental personal use.

It was the employer's position that the employee was discharged for misconduct. The commission agrees. The employee used the employer's letterhead to send false information, information that reduced her income by half, to a housing authority to verify her employment. The employee made up a name and signed that name to the letter, with the title Customer Service Manager under the signature. The letter invited the reader to contact "Sarah" at the employee's telephone number if there were any questions. The employee's actions were clearly dishonest and the employee falsified documentation and sent the inaccurate letter, purportedly from the employer to a governmental agency to substantiate her claim for rental assistance. The employee's actions 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 37 of 2008, the employee was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits for each of weeks 47 through 52 of 2008 and weeks 1 and 2 of 2009, amounting to a total of $2,114.00; 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 37 of 2008 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 $2,114.00 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on September 9, 2008, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

Dated and mailed January 23, 2009
nelsona . urr : 145 : 1 MC 630.09

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who indicated that the employee was not well educated and did not have a good understanding of the employer's ethics policy. He found the employee credible when she said this was a stupid mistake that she made and she only wrote the letter to speed things up. Further, he found it credible that she did not realize that her actions might have a negative impact on the employer. The commission agrees that the employee may not have been thinking of potential adverse affects to the employer when she wrote this letter "verifying" her employment with the employer. However, the letter understates her income. Further, the employee made up the name of an alleged worker, and signed the letter with that name. The employee then listed her own telephone number. The employee never attempted to contact human resources to verify her employment information and had no good reason for her failure to do so.

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.

cc: M & I Bank (Beloit, Wisconsin)


 

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