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

DARLENE M HENDERSON, Employe

POLARIS INDUSTRIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98201981EC

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, and after consultation with the ALJ, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked for over two years as a machine operator for the employer, a recreational vehicle manufacturer. Her last day of work was November 3, 1998. She was discharged on November 6, 1998 (week 45).

Shortly before her last day of work, the employe returned from work related carpal tunnel surgery. She was working under restrictions and was required to rest her hand 10 minutes for each hour she worked. The employer assigned her to work in an office alone doing paperwork as light duty. She was observed by a supervisor on her last day of work sitting in a chair for 5 minutes or more with her eyes closed. The employe returned to work without being awakened while the supervisor's back was turned. The employer's rules forbid sleeping on the job. The employe was suspended pending review. She was discharged later that same week for sleeping on the job.

The issue before the commission is whether the employe was discharged for misconduct connected with her employment.

Although the employe denies sleeping and testified that she was resting her eyes while she rested her hand as required by her doctor, the ALJ rejected her denials and believed she was sleeping. The commission accepts the ALJ's assessment. However, not every instance of sleeping on the job evinces the requisite intent to harm the employer's interests which is necessary for a finding of misconduct. While sleeping on the job is a very serious matter, it will not be considered misconduct absent some evidence that it was done in deliberate disregard of the employer's interests or that it amounted to negligence of a certain degree or recurrence. The level of negligence defined as misconduct is that which manifests wrongful intent or evil design or shows an intentional and substantial disregard of the employe's duties and obligations to the employer. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994); aff'd. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 05-0234 (Wis. Ct. App. Feb. 29, 1996)(truck driver who fell asleep behind the wheel did not engage in misconduct).

There is no evidence that the employe intended to sleep while on the job. In fact the record shows that the employe inadvertently fell asleep while working. The employe was in her chair at her workstation, she was not napping in a hidden place. She had a legitimate reason to not be working for a short time during her shift. There is some dispute about how long she was observed sleeping but not much longer than 10 minutes. She had never received any warnings in the past for sleeping or any other rule violation. Under the circumstances, the commission cannot conclude that the employe intended to harm the employer's interests when she briefly fell asleep at her desk.

The commission therefore finds that in week 45 of 1998, the employe was discharged but not for misconduct connected with her work for the employer, within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employe is eligible for benefits beginning in week 45 of 1998 if she is otherwise qualified. The employe is not required to repay any benefits to the Unemployment Reserve Fund.

Dated and mailed April 29, 1999
henderd.urr : 178 : 1  MC 659.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission consulted with the administrative law judge prior to reversing. The ALJ did not credit the employe's denial of sleeping. However she did not believe the employe intended to sleep but merely fell asleep by accident. The commission concurs and consequently reverses to find the employe guilty of simple neglect in falling asleep rather than misconduct.

PAMELA I. ANDERSON, COMMISSIONER (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I agree with the administrative law judge that the employe was sleeping while on duty. The employer's rules forbid sleeping on duty. Even if the employe found the filing boring, she could move around.

The majority cites the McKibbin decision but that is an unpublished Court of Appeals decision. McKibben was a truck driver who was fired for an accident he had after he had drunk 2 beers hours before. The employer fired him because a breathalyzer test read at .136 but the breathalyzer test was thrown out in court so the proof of his intoxication was gone. The other reasons relied on by the employer at hearing were not the reasons why the employer fired the employe.

The Commission in the past has usually found sleeping on the job to be misconduct unless there is some mitigating factor. If an employe has narcolepsy, we would not find sleeping misconduct, unless the employe goes to a secluded area to avoid detection. If an employe has a medical condition that causes him to fall asleep and he fails to seek treatment after warning, we would find misconduct. In the past, we have not usually required warnings because we assume people know that they are not expected to sleep while on duty. It does not appear that the employe in this case had made any provision to wake up after her nap.

For these reasons, I would agree with the administrative law judge and affirm.

__________________________________
Pamela I. Anderson, Commissioner

cc: R E HARRINGTON

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