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

RONDA L MARTIN, Employee

SOUTH CENTRAL WISCONSIN HEART, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09005912MD


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 cardiovascular clinic, for about six years as a credentialing coordinator. Her last day of work was September 16, 2009. She was discharged on September 21, 2009 (week 39).

The employee was certified as a registered health information technician (RHIT). This certification was preferred, but not required, by the employer. In order to maintain her certification the employee needed to obtain twenty continuing education credits every two years. On or about August 31, 2009, the employee requested to be off of work on September 17 and 18 to attend a two-day conference at which she could earn all twenty credits. The employee had to attend both days in order to obtain the credits she needed by the end of 2009 to maintain her RHIT certification. The employee was not aware of any other to way to obtain the necessary credits by the end of the year.

The employee's supervisor initially granted the request for the two days off. However, the supervisor later rescinded the approval because he discovered the employee was out of paid time needed to cover the days off. The employee requested permission to use flex time or to take time off without pay, but this request was denied. The employee's supervisor was subsequently replaced by a different supervisor. The employee reiterated her request to use unpaid time off to attend the conference, but the new supervisor also denied this request. However, because the employee had earned a vacation day in the mean time, the supervisor approved her attendance at the first day of the conference.

The employee was absent from work on September 17 to attend the conference, with approval of her supervisor. On September 18 the employee called in sick. The employee was not, in fact, sick, but was attending the second day of the conference. When the employer learned of this it discharged the employee for falsification of information regarding time away and for insubordination.

The 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."

The employee was remiss in waiting as long as she did to obtain the necessary credits. With better planning she should have been able to arrange paid time off of work to pursue continuing education. However, the employee's negligence notwithstanding, the employer's conduct in this situation cannot be justified. The employer had the authority to give the employee a day off without pay or to allow her to use flex time to cover the absence, but deliberately chose not to do so. The employee was not asking for time off for personal reasons, but in order to update a certification that was related to her job and which the employer preferred her to have. The employer's actions were unreasonable and placed the employee in an untenable position where her only options were to engage in the course of conduct she did or lose her certification. While the commission does not condone the employee's dishonesty, given the unique circumstances of this case it finds that her actions did not evince misconduct.

The commission, therefore, finds that in week 39 of 2009, the employee was discharged and not for misconduct connected with her employment, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2009, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed May 7, 2010
martiro . urr : 164 : 5 MC 630.07 MC 675

/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 about witness credibility and demeanor. The commission's reversal does not rely on a differing assessment of credibility. Rather, the commission has reached a different conclusion when applying the law to the same set of facts as that found by the administrative law judge.

cc: Attorney Timothy Scheffler


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