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


DAN C LA BUDDE, Employe

PARTS AMERICA, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97401565AP


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 the applicable law, records and evidence in this case, and after consulting with the administrative law judges, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately two months as a full-time parts specialist for the employer, an automotive parts business. His last day of work was May 19, 1997, when he was discharged (week 21).

During the employe's initial hiring interview, he was given an employment application to fill out. One question on the application asked whether he had been convicted of a felony in the last seven years. The employe had been convicted of sexual contact with a minor, a felony, during that period. The employe believed that the conviction would be reduced to a misdemeanor after he successfully completed his probation. The employe answered the question "no."

After working two months for the employer, the employer's management considered the employe for a supervisory position. At that time the employe was asked to sign a consent form for a background check. The employer's investigation revealed that the employe had been convicted of a felony within seven years of filling out his application. Based upon this information, the employer discharged the employe on May 19, 1997 for falsifying his application.

The issue to be decided is whether the employe's discharge was for misconduct connected with his employment.

At the hearing, the employe maintained that the employer's recruiter instructed him to misrepresent his conviction record at the time he completed his application. At the remand hearing, the recruiter credibly denied that he had ever instructed the employe to lie about his conviction record. The recruiter maintained that he did not discuss the employe's personal circumstances with him and would never advise a job applicant to lie about anything on his application. The commission accepts recruiter's testimony as more credible. The employe did not assert that the recruiter had instructed him to falsify his application until the hearing. Neither his initial statement to the department nor his conversation with the general manager at the time of his discharge alluded to it. If the employe had received such instruction, the commission believes that he would have raised it prior to the hearing. The commission therefore concludes that the employe deliberately falsified his employment application.

Over the years, the courts have consistently held that untruthful answers to questions on job applications inquiring about the criminal records of job applicants are grounds for discharge and constitute misconduct. Disch v. Miller Brewing Co., Dane County Cir. Ct., Jan. 12, 1958), Novak v. Coca-Cola Bottling Co. (Dane County Cir. Ct., no. 148-273, May 17, 1976). An employer who is entitled to ask a question is entitled to receive an honest answer and to rely on it. Miller Brewing Co. V. DILHR & Simmons, 103 Wis. 2d 496, 504-505, (Ct. App. 1981). The employer is entitled to complete and truthful answers on job applications so that it can make an informed hiring decision.

The employe's act of falsifying his conviction record was in deliberate and substantial disregard of the employer's interests. The employer was entitled to complete information so that it could evaluate for itself whether the employe's conviction rendered him unsuitable for employment with it.

The commission therefore finds that in week 21 of 1997, the employe was discharged for misconduct connected with his work for the employer, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits of $136 for week 22 of 1997, and $168 for weeks 23 and 24 of 1997, amounting to a total of $472; for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), he is required to repay such sum to the Unemployment Reserve Fund. The benefits for weeks 21 and 22 of 1997 were withheld as forfeitures. Since the employe is not eligible for benefits for these weeks, $170 will be restored to the forfeiture balance.

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 employe 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 employe is ineligible for benefits beginning in week 21 of 1997, and until seven weeks have elapsed since the end of the week of discharge and he has earned wages in covered employment performed after the week of discharge equaling at least 14 times his weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $472 to the Unemployment Reserve Fund.

For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employe was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Dated and mailed: December 19, 1997
labudda.urr : 178 : 3   MC 630.20 

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judges who conducted the original and the remand hearings. Each ALJ found the witnesses before her credible. However, for the reasons stated above, the commission resolves the credibility question in favor of the employer's witness and reverses accordingly.

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.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

cc: JAMES WALLNER
PARTS AMERICA


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