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

RICHARD A FOURTE, Employee

MIDWEST REFRIGERATED SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12601032MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and Mailed May 18, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In the petition for commission review, the employer asserted that requiring it to carry its burden of proving misconduct in a case such as this, that involves criminal charges, is potentially in conflict with "public policy" and potentially in conflict with the criminal prosecution. Additionally, the employer asserted that an employee who testifies at an unemployment insurance hearing may be without the benefit of counsel, and may be subject to cross-examination in the criminal proceeding based on testimony given at the unemployment insurance hearing. Finally, the employer asserts that testimony at an unemployment insurance hearing could involve a violation of Fifth Amendment rights applicable to the criminal prosecution, apparently alluding to the right not to give self-incriminating testimony.

Criminal prosecutions are legally separate from unemployment insurance eligibility matters that are adjudicated under Chapter 108 of the Wisconsin statutes. Wis. Stat. § 108.101 provides that no finding of fact or law, determination, decision or judgment made with respect to rights or liabilities under Chapter 108 is admissible or binding in any action or administrative or judicial proceeding in law or in equity not arising under Chapter 108, unless the Department of Workforce Development is a party or has an interest in the action or proceeding because of the discharge of its duties under Chapter 108. The fact that testimony given at an unemployment insurance hearing may involve matters also considered in a separate criminal proceeding does not translate into violation of any Fifth Amendment or other legal rights. Whether or not testimony freely given at an unemployment insurance hearing may be admitted in a criminal proceeding is a matter to be determined by the court with jurisdiction over that criminal proceeding. If an employee chooses to invoke his/her Fifth Amendment right against self-incrimination at an unemployment insurance hearing, or in a court proceeding, he/she is free to do so. The right to be represented by counsel is a Sixth Amendment right, and any individual testifying at an unemployment insurance hearing is free to obtain counsel if he/she so chooses.

As carefully explained by the administrative law judge in her decision, the employer had the legal burden of proving fault on the employee's part for his final period of absence, but failed to provide firsthand evidence that would have satisfied that burden. Accordingly, misconduct for unemployment insurance purposes was not established.


fourtri : 185 : 5

cc: Midwest Refrigerated Services, Inc. (Milwaukee, WI)



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