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


CAROL M CULHANE, Employe

MLG COMMERCIAL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99604782MW


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 employe worked about 15 months as an administrative assistant for the employer, a commercial real estate company. Her last day of work was June 10, 1999, when she was discharged. In her position the employe had access to salary information. There is no employer rule that prohibits distribution of such information to co-workers. The file containing the salary information is not marked confidential. The employe was aware that it was improper to divulge such information. The employe divulged salary information to two or three workers knowing that the workers intended to use the information in their reviews in order to receive pay increases. The employer discharged the employer for divulging such information.

The issue to be decided is whether the employe's discharge was for misconduct connected with her employment. 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 compensation 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."

The commission finds that the employe's actions in divulging sensitive information learned as a result of her position with the employer constituted misconduct connected with her employment. The employe knew, or should have known, that salary information could not be divulged to other workers. A written rule prohibiting such actions of course would support the employer's case by establishing actual knowledge by the employe that her conduct was prohibited. However, lack of such a rule or explicit verbal instruction not to divulge information is not necessary. Further, the purpose the information was going to be used for, namely, to bolster a worker's position when asking for a raise at a review, clearly was contrary to the employer's interests.

The commission therefore finds that in week 24 of 1999, the employe was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits in the amount of $2,080.00 for weeks 26 through 33 of 1999, for which the employe was not eligible and to which the employe was not entitled, within the meaning of Wis. Stat. § 108.03(1).

The final issue to be decided is whether recovery of overpaid benefits must be waived.

Wisconsin Statute § 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 employe. Under Wis. Stat. § 108.02(10e)(a) and (b), department 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, 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 department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.

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 24 of 1999, and until seven weeks elapse since the end of the week of discharge and the employe has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. The employe is required to repay the sum of $2080.00 to the Unemployment Reserve Fund.

Dated and mailed January 21, 2000
culhaca.urr : 132 : 1 : MC 666.01  MC 687

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did discuss witness credibility and demeanor with the administrative law judge. The administrative law judge did not believe that the employe had been directly told not to divulge salary information, however, he believed the employe knew it was improper to do so. The commission agrees that the employe was aware that her conduct was not acceptable. For this reason, the commission finds that the employe's actions in divulging such information, particularly knowing the use information was going to be put to, constituted an intentional and substantial disregard of the employer's interests.


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