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


RANDAL M ALBRECHT, Employe

LIFE STYLE STAFFING OF APPLETON, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98401933AP


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 beginning in week 26 of 1998, if otherwise qualified.

Dated and mailed: October 5, 1998
albrera.usd : 105 : 6  PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The employer challenges, in the petition for review, the administrative law judge's failure to give weight to much of the employer's evidence. For the following reasons, the commission fully agrees with the administrative law judge's treatment of it. First, "hearsay" is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." For example, at the hearing the employer's witness testified that one of the employer's office managers told her the employe had told the manager he wanted to be made "inactive." The witness's testimony as to the manager's statement is hearsay because it is a statement by someone other than the witness, i.e. the manager, offered to prove the truth of the matter asserted, i.e., that the employe had requested to be made inactive. The employer's testimony regarding the content of its business records is in the same category. It is testimony as to statements or "contents" in the business records, offered by the witness to prove the truth of the matters asserted. The employer's witness conceded that her testimony was based upon the employer's computer records. For that reason, absent the computer records themselves the evidence is properly discounted.

The employer also asserts in the petition that, in the past, its computer records have also been rejected. This is too general an assertion for the commission to be able to respond. The commission would refer the employer to Wis. Stat. § 908.03(6), the so-called "business records" exception to the prohibition against hearsay evidence. Business records, or any other records of regularly conducted activity, are admissible pursuant to this exception, which states:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

This provision allows introduction into evidence of such matters as the employer's computer records, but only if the stated conditions are satisfied. The information must be compiled at or near the time, and must come from a person with knowledge of the information compiled; in addition, the compilation or report must be part of a regularly conducted activity. Finally, these factors must be established by testimony from the custodian of the record or another qualified witness. Even when all these conditions are satisfied, the evidence is to be excluded if circumstances indicate a lack of trustworthiness in the evidence. If the employer's computer records have not been accepted in previous hearing, the commission can only guess that the exclusion was due to the employer's failure to satisfy one or more of the listed conditions of admissibility.

For these reasons, and those stated in the appeal tribunal decision, the commission has affirmed that decision.


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