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

BARBARA A SPIEKER, Employee

PLYMOUTH CARE CENTER LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09403522SH


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 6.5 months as a social worker for the employer, a health care facility. She was discharged on August 17, 2009 (week 34).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

The employer's attendance policy (exhibit # 1), a copy of which the employee received on January 29, 2009, states as follows, as relevant here:

...the company places great emphasis on good attendance. Frequent absence or tardiness places an extra burden on your co-workers and hinders our effort to provide quality care to our residents....

It is your responsibility to be on the job on time each day, fully able and ready to work.

This policy also sets forth a progressive discipline system for attendance violations, indicating that 6 incidents of tardiness will result in an advisory counseling, 8 incidents a verbal warning with written confirmation, 10 incidents a written warning, 12 incidents a written warning with suspension, and 14 incidents termination.

For the first 15 weeks of her employment i.e., between January 29 and May 12, 2009, the employee was tardy on 48 occasions for times ranging from 1 minute to 24 minutes.

On May 12, 2009, the employer changed the employee's start time from 8 a.m. to 9 a.m. to assist her in arriving at work on time.

During the next 5 weeks, the employee was tardy on 10 occasions for times ranging from 1 minute to 7 minutes.

On June 16, 2009, the new facility administrator met with the employee to emphasize to her the importance of arriving at work on time. The administrator then granted the employee a fresh start in regard to her attendance record.

Even though the employee was not involved in direct patient care, all professional workers, including the employee and the administrator herself, were held to the same attendance expectations as line staff in order to provide consistent role models for good attendance.

After the June 16 meeting with the administrator, the employee was then tardy the next 3 work days, and, during the next 5 weeks, was tardy on 14 occasions for times ranging from 1 minute to 12 minutes.

On July 21, 2009, the employee was issued a written warning for repeated tardiness. On this form, the employee wrote that the explanation by the employer of the impact the employee's tardiness had on the employer was "BS;" that professional workers do not usually punch time clocks; and, if she were late, "So what?"

During the next two weeks, the employee was tardy on 4 occasions for times ranging from 1 minute to 9 minutes.

On August 5, 2009, the employee was issued a two-day disciplinary suspension for repeated tardiness. In the written report imposing the suspension, the listing of disciplinary steps indicated that the next step would be termination. The employee again indicated in her response that her tardiness did not have any impact on the facility.

The employee served her disciplinary suspension on August 5 and 6. The employee was then tardy on August 10 for 2 minutes and on August 17 for 2 minutes.

The employee was then discharged for excessive tardiness.

Since the employee was again tardy after her most recent warning/discipline, the appropriate test is whether her overall record supports a conclusion of misconduct.

The employee's overall attendance record is abysmal. During her 6.5 months of employment, the employee was tardy 78 times. The employer, in an effort to help the employee improve her attendance record, not only modified the employee's start time but permitted her a fresh start in June 2009. Despite this, the employee continued to have an excessive number of tardies. The only reason the employee offers for this is the fact that she gets up at 5:30 a.m., gets busy with other things, and just loses track of the time. This is not a valid reason.

The ALJ relied upon the commission's decision in Harmon v. Ameritech Services, Inc., UI Hearing No. 02607385MW (LIRC April 8, 2003), to hold that, since the employee's attendance record showed improvement, misconduct had not been established.

However, in Harmon, the employee was tardy only 10 times over a period of 18 months, and the last two incidents occurred four months apart. This is not at all comparable to the situation at issue here where, over a period of months approximately one-third that in Harmon, the employee had 8 times as many incidents of tardiness. Moreover, although the employee's record of tardiness here improved slightly, not a week went by where she wasn't tardy at least once. In addition, during the last four months of her employment, the employee here was tardy 44 times, in contrast to the Harmon employee's record of one incident of tardiness in his last four months of employment. It should also be noted that, in Harmon, the commission also relied upon the fact that "...on some occasions...his tardiness was caused by events outside of his control." The record here does not reflect that the employee's tardiness was caused by such events.

The employee's attendance record did not come close to improving sufficiently to invoke the reasoning in Harmon. During her last month of employment, she was tardy 8 times, the previous month 13, and the month prior to that 9. In order to demonstrate sufficient improvement to overcome an unsatisfactory overall record, the improved record, unlike the employee's record here, has to at least approach the satisfactory range.

Moreover, an improved record has been relied upon as an indication of a sincere intent to improve performance. Not only did the employee's tardiness record not improve sufficiently to establish such an intent on her part to improve, but the attitude she displayed in her written comments on the July 21 and August 5 disciplinary reports also shows that she did not take the employer's promptness requirement seriously.

The commission therefore concludes that the employee was discharged in week 34 of 2009 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 the amount of $9,258 (of which $48 is set forth in other decisions) for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1),and that the employee is required, pursuant to Wis. Stat. § 108.22(8)(a), to repay this amount 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, within the meaning of Wis. Stat. § 108.04(13)(f), the overpayment was not the result of department error. See Wis. Stat. § 108.22(8)(c).

The commission further finds that department records do not show that the employer failed to provide correct and complete information requested during the department's investigation of this matter within the meaning of Wis. Stat. § 108.04(13).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 34 of 2009, 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 $9.258 (of which $48 is set forth in other decisions) to the Unemployment Reserve Fund.

This decision also results in an overpayment of Federal Additional Compensation (FAC) benefits that must be repaid. The employee will receive, or may have already received, a separate 'UCB-25 Notice of Federal Additional Compensation Overpayment' regarding the amount of FAC benefits that must be repaid.

The initial Benefit Computation (Form UCB-700), issued on August 18, 2009, 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 March 31, 2010
spiekba . urr : 115 : 5 MC 605.01

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.

 


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