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

JAMES L WALKER, Employee

STEINHAFELS, INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12001181MW


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 started working full-time as a sales associate for a retail furniture store in March 2011. In August 2011 the employer adopted an unsafe loading policy under which certain methods by which customers proposed to transport furniture were deemed to be unsafe, and customers were required to sign a waiver if they insisted on taking a product in an unsafe way. The employee received a copy of a new company policy regarding assisting customers with unsafe loads. The policy stated in pertinent part:

EMPLOYEE UNSAFE LOAD FORM

For your safety and the safety of others, Steinhafels does not advise and will not help load or tie down furniture in the following situations:

...
3. Any item on the top of any vehicle or any vehicle rack.
...

If a load is unsafe, the customer MUST sign a Customer Unsafe Load form before loading their merchandise.

Employee acknowledgement

Steinhafels has informed me that if a load is unsafe I am not to assist in loading. I understand that assisting in a load that is unsafe will result in termination.

/s/

The employee signed the acknowledgement form.

The furniture store is in a shopping mall, and it can be accessed directly from the mall's parking lot. The employee was scheduled to work on February 7, 2012 at 2:00 p.m. At about 1:50 p.m., he was approaching the store from the parking lot for the start of his shift. A customer was in the parking lot just outside the store, attempting to put a box spring mattress on top of her van. The customer knew the employee worked for the store, since he was the employee who had sold her the mattress. The employee helped her put the mattress on top of her van. There was no discussion between the employee and the customer concerning whether or not he was acting as an employee at the time he was helping her. His supervisor observed this from in the store, but did not intervene. The employee then went into the store and clocked in. The next day he was discharged for violating the unsafe loading policy.

The issue before the commission is whether the employee was discharged for misconduct in connection with his work.

The administrative law judge found that although the employee's shift had not yet started, his actions were closely enough associated with his employment for him to be subject to the rule, and to know he was subject to the rule, so that his actions constituted misconduct. The employee petitioned for commission review.

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.

What an employee does while off-duty can be found to be misconduct. An employer may impose a rule on its employees that regulates their conduct while off duty, and violation of that rule may be considered misconduct, provided the rule bears a reasonable relationship to the employer's interests. Gregory v. Anderson, 14 Wis. 2d 130, 137, 109 N.W.2d 675 (1961). Since the burden to show misconduct is on the employer, however, the employer must present evidence as to why its business interests necessitate the regulation of an employee's off-duty conduct. See, Koss v. Menominee Indian Tribe, UI Dec. Hearing No. 97400031GB (LIRC April 10, 1998).

The unsafe loading policy was designed to protect the company against potential liability and financial loss for contributing in some way to a customer's unsafe methods of transporting his or her purchases. Its interest, then, was coextensive with its potential to be held liable. Clearly, the employer might be liable if it were to assist a customer in an unsafe loading practice that contributes to some loss or damage. In addition, under the doctrine of apparent authority, an employer also might be liable for the acts of someone who is not on duty for the employer. Pamperin v. Trinity Memorial Hospital, 144 Wis. 2d 188, 203, 423 N.W.2d 848 (1988).(1) If, then, the employer's rule prohibited its employees from assisting the unsafe loading of merchandise whether on duty or off duty, it would have been consistent with its business interests.

The unsafe loading policy, however, is silent on whether it applies to off-duty conduct. An employer ordinarily must show that its rule explicitly notified the employee that he or she may be subject to discharge for the off-duty conduct. See, Koss, supra; Betters v. Kimberly Public School, UI Dec. Hearing No. 02403251AP (LIRC July 29, 2003); Berg v. Westaff (USA) Inc., UI Dec. Hearing No. 04202723EC (LIRC April 28, 2005). In addition, the commission has been consistent in holding, except in cases in which the alleged conduct is sufficiently egregious, that before there can be a finding of misconduct the employee has to be aware or have a reason to be aware that his job is in jeopardy or will be if he engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Dec. Hearing No. 00003095MD (LIRC Oct. 3, 2000); Munoz v. La Costa, Inc., UI Dec. Hearing No. 02607640MW (LIRC April 4, 2003).

The commission does not find the circumstances here to be sufficiently egregious to relieve the employer of its responsibility to make the employee aware that his job would be in jeopardy for his conduct. Egregious behavior is marked by conduct that an employee knows is contrary to an employer's direct orders. See, Ward v. Diamond Detective Agency, Inc., UI Dec. Hearing No. 03604533MW (LIRC Nov. 5, 2003). Here, for the employee to realize that his assistance to the customer was a violation of the unsafe loading policy, he would have to be charged with the knowledge that, prior to entering his employer's business to start his work day and while in a public parking lot, his actions nevertheless could adversely affect the employer's interest underlying the existence of its policy. This would assume a level of knowledge or training about the details of liability law that, in the absence of any evidence, would be unrealistic to expect of someone. The employee's acts appear to have sprung from a good-faith error in judgment based on an impulse to be helpful, and were not such a willful or wanton disregard of the employer's interests as to relieve the employer of the burden of warning the employee.

The commission therefore finds that in week 6 of 2012 the employee was discharged but not for misconduct in connection with his work for the employer within the meaning of § 108.04(5), Wis. Stats.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 6 of 2012, if he is otherwise qualified.

Dated and Mailed September 20, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


walkeja . urr : 107 : 2


NOTE: The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing because the commission did not reverse the ALJ's decision based on a differing impression of witness credibility and demeanor. Rather, the commission reversed the ALJ's decision because it reached a different legal conclusion from the evidence adduced at the hearing.

 


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Footnotes:

(1)( Back ) "Under apparent authority, a principal may be held liable for the acts of one who reasonably appears to a third person, through acts by the principal or acts by the agent if the principal had knowledge of those acts and acquiesced in them, to be authorized to act as an agent for the principal." Id. at 203.