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


JESSICA L WADDELL, Employe

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98004942MD


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 during three years as an accounting clerk for the employer, an insurance business. Her last day of work was November 18, 1998, when she was discharged.

The employer's time accounting system required the employe to keep track of her own time by hand and give her supervisor a written summary at the end of the week. The supervisor then wrote up the time sheet from the employe's summary and the employe was paid an hourly wage from that time sheet. The employe testified that she did not record her time daily but wrote it up at the end of the week. The employer's rule provided for discharge for falsifying company records but had no express rule regarding time sheets.

After the employe's supervisor received notice from another supervisor that the employe had left early with permission one day in October but may not have accurately recorded it on her time note, the supervisor investigated the employe's arrival times that week by referring to the employer's access record. Employes use a coded access badge to enter the premises. It leaves a date stamp on entry. On October 28, 1998 the employe recorded that she worked from 7:30 to 5:10. The access report states she entered at 7:54. On October 29, the employe recorded 7:25 and the access report stated 7:42. On October 30, the employe recorded 7:30 and the access report stated 7:52. The employe had indicated to her supervisor after the day she had left early that she would make up the time lost by working extra the rest of the week. The employe was discharged for falsifying her timesheet.

The issue is whether the employe's discharge was for misconduct connected with her employment.

The employe could not explain the discrepancies but denied any intent to falsify her time. The commission does not credit that the employe recorded these times in error. Her starting times were not all identical, as they would be if she had a habit of entering a standard time without regard to her actual arrival. The employe also had a motive to pad her time because she was trying to make up time lost earlier in the week due to a family illness. The time added was not negligible. Under these circumstances, the commission concludes that the employe intentionally falsified her arrival times three times that week for the purpose of being paid for time she did not work. Such conduct is in substantial disregard of the employer's interests and amounts to a knowing violation of the conduct the employer had a reasonable right to expect. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941).

The commission therefore finds that in week 47 of 1998, the employe was discharged for misconduct connected with the employe's work, within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $205 per week for each of weeks 48 through 51 of 1998, amounting to a total of $820; for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

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 reversed. Accordingly, the employe is ineligible for benefits beginning in week 47 of 1998, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $820 to the Unemployment Reserve Fund.

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.

The initial Benefit Computation (form UCB-700), issued on November 22, 1998 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 May 28, 1999
waddeje.urr : 178 : 3   MC 630.09

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission consulted with the ALJ prior to reversing. The ALJ credited the employe's denial that she intentionally falsified her time based in part on the lack of reasonable motive to do so. For the reasons stated above, the commission reaches a different conclusion.

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.C. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Compensation Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.


cc: AMERICAN FAMILY MUTUAL INSURANCE

ATTORNEY STEVEN C ZACH
BOARDMAN SUHR CURRY & FIELD


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]