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

TRACY A LUCHSINGER, Employee

CHARLESTON HOUSE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09000874BD


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 the employer, a certified residential care apartment complex, for four and a half years as a caregiver. Her last day of work was January 13, 2009 (week 3).

In November of 2008, the employer received reports from other workers that the employee was habitually late. The employer checked the employee's time card for the last week of November and discovered that she was between 12 and 42 minutes late on November 24, 25, and 26. On November 29 the employer met with the employee to discuss her tardiness. The employer offered to change the employee's start time from 6:30 a.m. to 7:00 a.m., but the employee declined. The employer told the employee that her job would be in jeopardy if the habitual tardiness continued.

From December 1 through December 26 of 2008, the employee was late on a near-daily basis. On one occasion the employee reported that she would be late because of snow, but she provided no excuse or explanation for the other late arrivals.

On January 12, 2009, the employee reported for work 20 minutes late and started to work without picking up her reminder sheet, which lists everything a caregiver is supposed to do for the day. The employee then immediately ducked into the room of a resident to whom she was not assigned, and who was easy to care for, rather than handling her own duties. The employee was late in administering a 7:00 a.m. blood sugar test to a resident who takes insulin and failed to fill out medication sheets. That day the employer talked to the employee about being late and not following procedures.

The following day, January 13, 2009, the employee reported for work 25 minutes late and again administered medication to residents without filling out the required documentation. When the employer spoke to the employee about her actions, she offered no reply. The employer then decided to terminate the employment relationship.

The statute provides that that individuals who are tardy on six or more scheduled workdays in a 12-month period without adequate notice to the employer, where the employer has a uniformly applied written policy on notification of tardiness that satisfies certain statutory requirements, and where it has been shown that the employee received a copy of the policy and received at least one warning under the policy, will be ineligible to receive benefits until six weeks have elapsed since the discharge and the employee earns wages equal to at least six times his weekly benefit rate. See Wis. Stat. § 108.04(5g).

The above-cited provision does not apply in this case. The employer did not demonstrate that it has an attendance policy which complies with the statutory requirements, nor was it shown that the employee's tardiness was without proper notice to the employer.

Having concluded that Wis. Stat. § 108.04(5g) does not apply, the next issue to be decided is whether the employee's discharge was due to misconduct connected with her employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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."

At the hearing the employee provided an excuse for her habitual tardiness. She testified that the employer told her it might be building a facility in a nearby community and asked if she would work there. She therefore bought a house near the community where the employer intended to build, resulting in a longer drive to work. The employee further explained that she transferred her children to a day care center near her new home and was scheduled to drop them off at 6:00 a.m., which would have given her enough time to get to work, but the day care providers were frequently late in opening. Finally, the employee indicated that she could not accept the later start time offered by the employer because her son would then have returned from school to an empty house at the end of the day.

However, the record does not establish that the employee moved in reliance on any promise from the employer. While the employer may have mentioned the possibility of building a new facility, it had not built the facility or formally offered the employee a job there. The employee moved of her volition, thereby creating the necessity for a longer commute, and it was up to the employee to make sure she had enough time to complete the drive to work. The commission does not find it credible that a day care business would open late on a regular basis, but assuming this was the case, the onus was on the employee to make other arrangements. The employer would have permitted the employee to report for work half an hour later, but she rejected this option. The employee was obligated to either find someone to watch her son after school, so that she could accept the later start time, or find more reliable morning day care. The evidence did not establish that the employee took any steps to address the situation.

In addition to her chronic tardiness, the employee also failed to follow procedures with regard to providing resident care and medication. On her last two days of work the employee did not attempt to perform the tasks on the reminder sheet prepared by the employer and did not fill out medication charts as required. The employee explained that she did not have time to administer the medication on time if she filled out the employer's paperwork. However, charting of medications is an important task, on which the employee had received training, and to perform it was not a discretionary matter. Moreover, the employee would have had enough time to perform her assigned tasks, including performing a blood sugar test for a resident who took insulin, had she reported for work on time. The commission believes that the employee's actions in this regard, together with her habitual tardiness, evinced a wilful and substantial disregard for the employer's interests.

The commission, therefore, finds that in week 3 of 2009, 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 employee was paid benefits in weeks 3 through 15 of 2009 and week 19 of 2009, in the total amount of $2229, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). 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 3 of 2009 and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $2229 to the Unemployment Reserve Fund. The initial Benefit Computation (Form UCB-700), issued on January 20, 2009, is set aside. If benefit payments become payable based on other employment, a new computation will be issued as to those benefit rights.

This determination also results in an overpayment of federal additional compensation (FAC) benefits that must be repaid. The employee will receive a separate "UCB-25 Notice of Federal Additional Compensation Overpayment" regarding the amount of FAC benefits that must be repaid.

Dated and mailed August 12, 2009
luchstr . urr : 164 : 9 MC 605.09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


NOTE: The commission conferred with the administrative law judge about witness credibility and demeanor. The administrative law judge indicated that he found both parties to be forthcoming and sincere, but had no specific demeanor impressions to impart.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to off set 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.


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uploaded 2009/09/01