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


BARBARA A HORN, Employe

HOMETOWN PUBLICATIONS II INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00603362WB


On April 7, 2000, the Department of Workforce Development issued an initial determination which held that the employe's discharge was not for misconduct connected with her employment. The employe filed a timely request for hearing on the adverse determination, and hearing was held on May 25, 2000 in West Bend, Wisconsin before a department administrative law judge. On May 26, 2000, the administrative law judge issued an appeal tribunal decision reversing the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately a year and a half as a production worker for the employer, a newspaper publishing firm. The employer discharged her on March 8, 2000 (week 11), for having looked at a co-worker's paycheck and discussed the co-worker's pay with other co-workers. The commission concludes that the employe's actions were misconduct for unemployment insurance purposes and so reverses the appeal tribunal decision.

On the employe's last day of work, a pay day, she looked inside an envelope at work which contained the paycheck of a co-worker. The employe then discussed the co-worker's rate of pay with a different co-worker, expressing surprise as to how much the first co-worker was making. Later that day, several employes complained to the employer's general manager about the employe's actions. The general manager interviewed the employe that same day. Initially, she denied having looked at the co-worker's pay check, but she subsequently admitted having done so. Following her admission, the employer discharged her.

Misconduct for unemployment insurance purposes is the intentional and substantial disregard by an employe of standards an employer reasonably may expect of its employes. The employer has a general "confidential information" policy, which states:

It is through our customers and the confidential relationships we have established that make it possible to operate our business. You as an employee of Hometown Publications, will be coming in contact with information about our customers and their business activities, specifically that information relating to their financial status, and advertising copy that is given to us to hold in the strictness of confidence, plus any other information pertinent to confidentially [sic]. All advertising copy that is given to us on or before our deadline is to remain in the strictness of confidence until the issue or issues have been on the street. It is important that this advance knowledge never be discussed in casual conversation with other people whose position does not require the use of such information, because such information could be passed on innocently to the wrong party and considerable damage could be done. Any breach of this could very well result in immediate termination.

There is also information concerning our company that you may be coming in contact with such as a financial status, methods of doing business, and other internal operations information. It is obviously important that this information too be safeguarded and handled with the same degree of confidentially [sic] that was already discussed in this section. Any serious breach of this may result in termination and civil lawsuit.

The employe's conduct violated this policy. Although the general tenor of the policy is directed toward client confidences, it also specifically pertains to company internal operations information. The policy requires such information to be handled with the same degree of confidentiality as applies to client confidences, that is, that such knowledge never be discussed with those whose position does not require the use of such information. The policy provides further that any breach of it could result in immediate termination. Based upon the language of the confidentiality policy, and the response of co-workers to the employe's breach thereof, the commission concludes that the employe's failure was a substantial disregard of the employer's legitimate interests. There is also little question but that it was intentional. The employe had to pry open an envelope containing a co- worker's paycheck. Finally, she had to know her actions were wrong, given that she initially denied them when confronted by the employer's general manager.

The commission therefore finds that, in week 11 of 2000, the employe was discharged for misconduct connected with her work, within the meaning of Wis. Stat. § 108.04(5). The commission also finds that the employe received unemployment insurance for weeks 14 through 30 of 2000, totaling $1,156.00, for which she was ineligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1). Pursuant to Wis. Stat. § 108.22(8)(a), she must repay such sum to the Unemployment Reserve Fund. The commission finds, finally, that waiver of benefit recovery is not required under Wis. Stat. § 108.22(8)(c). Although the overpayment did not result from employe fault as provided in Wis. Stat. § 108.04(13)(f), the overpayment also was not the result of departmental 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 14 of 2000, 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. The department's monetary computation (UCB-700), issued on May 31, 2000, is set aside. The employe must repay $1,156.00 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.

Dated and mailed August 2, 2000
hornbar.urr : 105 : 1 MC 666.01  MC 687

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. The administrative law judge also found that the employe had engaged in the conduct alleged. The administrative law judge did not believe the employer's confidentiality policy governed the employe's actions. For the reasons stated above, the commission concludes that it did.

cc: ATTORNEY PETER SALZA
LAW OFFICES OF PETER SALZA LTD


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