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


DEBRA L GILLES, Employe

MENARD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200920EC


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 employe is eligible for benefits as of week 21 of 1999.

Dated and mailed October 20, 1999
gillede.usd : 105 : 3 MC 659.02  MC 660.01

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. However, not every instance of sleeping on the job evinces the requisite intent to harm an employer's interests which is necessary for a finding of misconduct. Henderson v. Polaris Industries, Inc., Hearing No. 98201981EC (LIRC 4-29-99). 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. Neubauer v. Milwaukee School of Engineering Corp., Hearing No. 96607193MW (LIRC 2-18-98). In that case, the commission found no misconduct despite the employe's having fallen asleep at work on three separate occasions in her four years of employment. One of the instances occurred at the end of a 12-hour shift in a 68-hour work week. The remaining two incidents were similar to the one in the present case.

A 1988 Milwaukee County Circuit Court case also suggests that more is necessary for a finding of misconduct than occurred in the instant case. In Aiken v. Village of Elm Grove, Case No. 758-525 (Milwaukee Cty. Cir. Ct. 3-10-88), the court affirmed the commission's finding of misconduct for sleeping on the job. The finding of misconduct was upon the third occasion, which occurred when the employe drove his front end loader into a secluded wooded area. The court phrased the matter as the employe's having gone to sleep as opposed to falling asleep. Given the employe's driving of the loader to a secluded wooded area, the employe's actions in that case were deemed intentional.

The employer asserts that the employe had fallen asleep previously. The above cases indicate, though, that more may be necessary to establish misconduct for unemployment insurance purposes. The commission also notes that, absent intentional conduct, the employe must be guilty essentially of gross negligence, or negligence so severe as to be tantamount to intentional conduct. The employer asserts that the employe had to have committed the intentional act of not working and resting on her broom, and that employers should be able to expect that employes will come to work well rested. The employe testified, however, that employes were working mandatory overtime the week in question; this, coupled with the employe's moving (to a new residence) during the time period in question, are factors which mitigate the employe's culpability. For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.


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