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

JENNIFER D BLANK, Employee

ABILITIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12000976MD


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 about 13 months as a resident caregiver for the employer, an assisted living facility. The employee cared for adults with mental and physical disabilities. The employee assisted them with day-to-day tasks. According to the employee's job description, she was responsible for ensuring the welfare, safety, and security of the employer's clients. Residents were to be supervised within the specifications set forth in their individualized care plans. All employees were expected to serve as positive role models.

On January 28, 2012, the employee took a client to obtain a body piercing. The client was incompetent to make her own decisions and has a legal guardian. The legal guardian had given permission for the client to get her nose pierced. Once at the piercing business, the client decided that she did not want to get her nose pierced. Instead, the client wished to have her tongue, eyebrow, and belly button pierced. The employee did not stop the client from following through on her wishes. The client had her tongue, eyebrow, and belly button pierced.

While at the piercing business, the employee decided that she, too, would get body piercings. First, the employee had her eyebrow pierced. Then, because the client wanted the employee to get another piercing, the employee borrowed $5 from the client and had her labia pierced.(1) Although the employee was aware that employees were prohibited from borrowing money from clients and had reminded the client of the policy, the employee agreed with the client that it was okay to borrow money from the client, as long as the employee paid the client back. The employee intended to repay the client on February 2, 2012. As of the date of the hearing, the employee had not repaid the client.

Upon learning of the events of January 28, 2012, the employer spoke with the employee. The employee confirmed the events as described above. The employer discharged the employee on January 30 (week 5) for what it considered gross misconduct. The employee had only been subject to discipline twice before. Both incidents involved reports of her sleeping on the job.

At the hearing in this matter, the employee admitted that, while with the client at the piercing business, she forgot everything that she had learned in training and had no specific thoughts about how she could have prevented the client from getting unauthorized body piercings. The employee did not have the authority to "drag her out of there." The employee did not see anything wrong with getting her own body pierced while supervising the client. The employee did not view getting body piercings together any differently than shopping, eating, or watching movies together. Although she understood that she was not supposed to borrow money from the client, the employee knew of at least one other employee who borrowed money from a client but did not get into any trouble.

A discharged worker is eligible for unemployment benefits unless discharged for misconduct connected with the employment. Wis. Stat. § 108.04(5). Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations, or of negligence so gross or repeated as to demonstrate equivalent culpability. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941).

The employer contended that the employee's actions on January 28, 2012, for which she was discharged, rose to the level of misconduct. The commission agrees.

The employee was trained in dealing with the challenges of caring for incompetent, disabled individuals. She was responsible for the welfare of her client. The employee knew that her client was legally incapable of consenting to body piercings and that she did not have authorization from her legal guardian to pierce anything other than her nose. Risks are involved with body piercings, such as infections and other health hazards, and certain sites on the body can cause more problems than others. It was the employee's obligation to find a way to change the client's mind about getting parts of her body, other than her nose, pierced or to otherwise prevent the client from having the procedures performed. The commission does not accept the employee's excuse that there was nothing she could have done. The employee was negligent in the performance of her job duties.

The misconduct standard encompasses carelessness or negligence of such degree as to be tantamount to wrongful intent or evil design. The commission believes the employee's failure to adequately supervise her client meets that standard. See, Govin v. Aurora Residential Alternatives Inc., UI Dec. Hearing No. 01201934EC (LIRC June 4, 2002).

In addition, the employee, as a resident caregiver, was responsible for modeling appropriate behavior. She did not do so. The employee openly and expressly violated the employer's rule against borrowing money from clients. She also crossed professional boundaries for caregivers when she had her eyebrow and genitalia pierced while with her client.

Although the employee's actions on January 28, 2012, may have been unlike any she had engaged in previously, a finding of misconduct is not unreasonable with single incidents of negligence when the direct consequences of an act or omission are fairly obvious to an employee and are such as to be likely to cause serious loss to the employer, his business, or his property. Boynton Cab, supra. Here, it should have been obvious to the employee that the client's legal guardian would be displeased with the employer's failure to ensure that the client was adequately supervised and that only those medical procedures specifically authorized were performed.

The commission therefore finds that in week 5 of 2012 the employee was discharged for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

Wisconsin Stat. § 108.04(5) provides that, if an employee is discharged from employment with an employer due to actions that constitute misconduct connected with the employment, the employee will not be eligible for any unemployment benefits based on wages earned from work prior to the discharge for that employer and will only be eligible for benefits based on wages earned from work for other employers when at least seven weeks have elapsed after the end of the week of discharge and the employee has earned wages in covered employment after the discharge of at least 14 times the employee's applicable weekly benefit rate.

Department records show that the employee was paid weekly benefits of $248 for weeks 6 through 31 of 2012, totaling $6,448. The employee was not eligible for or entitled to those benefits, given the above findings and conclusions.

The final issue to be decided is whether recovery of the overpaid benefits must be waived. Wis. Stat. § 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 employee. Under Wis. Stat. § 108.02(10e)(a) and (b), departmental 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, whether by commission or omission, or from misinformation provided to a claimant by the department, on which the claimant relied.

The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to departmental error as defined in Wis. Stat. § 108.02(10e)(a) and (b).

The commission further finds that the employee was paid benefits in the amount of $6,448, 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 entire amount must be repaid to the department because the overpayment was not because of any error by the department, within the meaning of Wis. Stat. § 108.22(8)(a) and (c).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 5 of 2012 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 of $248. The employee is required to repay the sum of $6,448 to the Unemployment Reserve Fund.

The initial Benefit Computation (Form UCB-700) issued on February 2, 2012, 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 August 21, 2012

BY THE COMMISSION:

Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


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NOTE: The commission did not consult with the administrative law judge before reversing his decision, because its reversal is not based upon a differing view as to the credibility of witnesses. Instead, the commission reversed his decision based upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

NOTE: For purposes of computing benefit entitlement, base period wages from work for the employer prior to the employee's discharge shall be excluded from the computation of the maximum benefit amount for this or any later claim. If the employee has base period wages from work with 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.

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 the overpayment of unemployment insurance benefits 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.

 



Appealed to Circuit Court.

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uploaded 2012/09/26


Footnotes:

(1)( Back ) There is some confusion in the record as to whether the employee's second piercing was of her nipple or her genitalia. After listening to the recording of the hearing, the commission is satisfied that the employee did not have her nipple pierced but, instead, had her labia pierced.