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

PRESTON L POINDEXTER, Employe

NORTHWEST GENERAL HOSPITAL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606560MW

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, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for four years as a dietary aide for the employer, an operator of a hospital business. His last day of work was September 9, 1998 (week 37).

In December of 1997, the employe was warned about errors in his time cards. He was informed that he would be fired if he failed to accurately record his work hours. On September 7, 1998 (week 37), the employe left work early at about 12:00 noon. He knowingly recorded that he had left at 2:00 p.m., his scheduled ending time. When his actions were discovered, he was discharged on his last day.

The initial issue to be decided is whether the employe was discharged for misconduct connected with his work under Wis. Stat. § 108.04(5).

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance 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 employee, 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 employee'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 employe asserted that he merely made a mistake and that his bar code card used to punch the clock was not working so he signed his time manually, writing in his start time of 6:30 a.m. and writing in his normally scheduled ending time. He states that he then left early, with permission, and did not clock out because his card did not work properly. However, he also wrote that he "forgot to punch out." He could not have known that he would forget to punch out when he says that he filled out the form in the morning. He is presumed to have done what he intended and he has failed to put forth a plausible explanation. His actions in intentionally recording an incorrect time after warning amounts to a falsification of his time record. That is an act which is wilful and contrary to the employer's interests and which amounts to an intentional violation of standards of behavior that the employer had a right to expect. As such, his discharge was for misconduct connected with his work as that term is defined in the law.

The commission therefore finds that in week 37 of 1998, the employe was discharged for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $865.00 for weeks 38 through 43 of 1998, for which he was not eligible and to which he was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case was not the result of department error. The adjudicator, as reflected in the initial determination, found that the employe's falsification of his time card did not rise to the level of misconduct connected with the employe's employment. The administrative law judge like the adjudicator found that the employe falsified his time card. However, the administrative law judge reasoned that a finding that an employe engaged in falsification of his time card is a finding that the employe engaged in an intentional act contrary to the employer's interests which, absent any factors stated, constituted misconduct connected with the worker's employment. The administrative law judge reasoned that the adjudicator's conclusion that falsification of work time is not misconduct represented a misinterpretation of law.

The commission disagrees with the administrative law judge's conclusion that waiver is appropriate. Falsification, even in the absence of mitigating circumstances, does not necessarily amount to misconduct connected with a worker's employment. The fact that the administrative law judge and the adjudicator reached different legal conclusions does not constitute department error. Likewise, the commission's reversal of the administrative law judge's finding that waiver is appropriate is based on the commission reaching a different legal conclusion than that made by the administrative law judge.

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 affirmed in part and reversed in part. Accordingly, the employe is ineligible for benefits beginning in week 37 of 1998, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. He is required to repay the sum of $865.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB- 700) issued on September 14, 1998, is set aside. If benefits become payable based on other employment, a new computation will be issued as to those benefit rights.

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: January 27, 1999
poindpr.urr : 132 : 1  MC 630.09   BR 335.04

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the administrative law judge. The commission's partial reversal to require recovery of the overpaid benefits is not based on a different assessment of witness credibility or demeanor. Rather, the commission has reached a different legal conclusion than that reached by the administrative law judge.

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: NORTHWEST HOSPITAL

DIRECTOR GREGORY FRIGO
BUREAU OF LEGAL AFFAIRS

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