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

SHEILA R NELSON, Employe

CHILDRENS OUTING ASSN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00602648MW

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 approximately 7 and 1/2 months as a child care teacher for the employer, a youth and family service agency. The employe's last day of work was January 17, 2000 (week 4). The employe was discharged on February 2, 2000 (week 6).

During the application process, on March 30, 1999 the employe filled out an application for employment. One of the questions on the application is "Have you ever been convicted of a crime, (felony or misdemeanor)?" The employe answered the question "No." On May 3, 1999 the employer submitted a criminal history record request to the Wisconsin Department of Justice (DOJ) in Madison, Wisconsin. On May 5, 1999, DOJ returned the record request indicating the employe had no criminal record. Later that month, May 21, 1999 the employe was arrested on a felony child abuse charge. On June 2, 1999 the Milwaukee County District Attorney's office filed a complaint charging the employe with felony child abuse.

On June 21, 1999 the employer hired the employe as a child care teacher. However, at the time of hire the employer did not ask the employe to resubmit an employment application, nor was the employe asked whether the information on her initial application continued to be accurate or needed to be updated. Another criminal history request was not submitted to DOJ at that time. Additionally, the employe did not disclose the fact that she had been arrested on charges of child abuse on May 21, 1999 when she began work for the employer.

Sometime in September or October, 1999 the employe was convicted of the amended charge of misdemeanor battery, stemming from the original incident and arrest of May 21, 1999. The employe specifically testified that her conviction was entered on October 14, 1999. On November 26, 1999 the employe informed her supervisor that she had been convicted of a misdemeanor battery involving a juvenile. The supervisor indicated that the employe would have to submit to another criminal background check and asked the employe to write a narrative description of what had occurred. The employe explained that she waited approximately a month from the date her conviction was entered to tell her employer because she wished to speak to her probation officer before doing so.

On December 3, 1999 the employer submitted a second criminal background check, concerning the employe, to DOJ. On February 2, 2000 the employer received the results of the second background check. The information the employer received showed that the employe had been charged with child abuse but that there was no information on the disposition of the case. Based on the information they had, the employer decided to discharge the employe. A subsequent investigation revealed the employe had been convicted of the amended charge of misdemeanor battery. A conviction under either section would have barred the employe from working for the employer under Chapter HFS 12, Wisconsin Administrative Code.

The issue therefore is whether the employe's discharge in week 6 of 2000 is for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5). 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 ALJ found no misconduct based on the employer's failure to ask the employe to resubmit an employment application or at the very least submit updated information. Additionally, the ALJ found that the employe did not misrepresent any information on her application for employment since the application itself imparted no affirmative duty on the employe's part to update any information. The ALJ faulted the employer for failing to recheck the employe's application at the time of hire several months later.

The commission however does not believe the dispositive issue is whether the employer had a greater duty than the employe regarding the disclosure of the information. The fact remains that the employe was convicted of a misdemeanor battery involving a juvenile and such conviction bars her employment with this employer.

The commission also concludes that the employe's conduct involving the juvenile was substantially related to her employment with her employer and was strictly prohibited by her employer. Therefore, the employe's conduct as evidenced by her misdemeanor conviction, evinced a wilful and substantial disregard of the employer's interests and standard of conduct the employer had a right to expect of her.

The commission therefore finds that in week 6 of 2000, the employe was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

The commission further finds that the employe was paid benefits amounting to $2,100.00 for which she is not eligible and to which she is not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a).

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 appeal tribunal decision is reversed. Accordingly, the employe is ineligible for benefits beginning in week 6 of 2000 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. There is no overpayment since the amount of $2,100.00 was withheld as forfeitures. Because the employe is ineligible for the weeks she received the overpayment the amount cannot be used as forfeitures and $2,100.00 will be restored to the forfeiture account.

Dated and mailed September 8, 2000
nelsosh.urr : 135 : 1  MC 617

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ regarding witness credibility and demeanor. The commission has no specific disagreement with the administrative law judge's credibility assessment, but finds misconduct as a matter of law. The employe's conviction of a misdemeanor battery involving a juvenile barred her from continued employment with the employer under Chapter HFS 12 of the Wisconsin Administrative Code. As a result, the employe's conduct involving the misdemeanor battery, though occurring off-duty, still amounts to misconduct connected with her employment within the meaning of the law.

cc: JAMES B SCHMIDT
CONTINENTAL INVESTIGATIONS & SECURITY LTD

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