Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: Donnell Haack v. LIRC and Polyone Corporation, Case 01 CV 3535 (Wis. Cir. Ct., Dane Co., December 10, 2002)

Digest Codes: AA 245   BR 335.01  PC 714.07   PC 729

The employee was employed by PolyOne Corporation for approximately four years before being discharged on May 16, 2001. PolyOne discharged her because she had been unavailable for work. She had been unavailable from May 14 through 16, 2001, because she had been incarcerated without Huber work release privileges.

The employee had been incarcerated at home under the Dane County Sheriff's Telephone Alternative Release ("STAR") program after being convicted of operating a vehicle while intoxicated. Terms of the employee's STAR participation included not using alcohol and wearing the STAR wristband at all times, however, she was permitted to work at PolyOne. On May 12, 2001, her STAR status was revoked because she had been using alcohol. At that point her Huber work release privileges were taken away pending the outcome of a disciplinary hearing.

The employee initially decided not to request a hearing regarding her STAR violation after being informed that she would be released to return to work on May 17, 2001. However, upon learning that she had been discharged, the employee did request the STAR hearing. It was held on March 17, 2001, and the suspension of privileges was affirmed. Most significantly, the employee lost five days of Huber work release privileges for the period May 14 through May 18, 2001. She unsuccessfully appealed this determination.

The employee was later disciplined for cutting off her STAR wristband, resulting in another suspension of her Huber work release privileges beginning on May 21, 2001. A disciplinary hearing was held on May 23, 2001, and her privileges were formally suspended through the week ending June 2, 2001 (week 22). During the balance of her incarceration, June 3, 2001 to June 12, 2001, she was eligible to be released to work.

While incarcerated without work release privileges the employee initiated claims for benefits for the weeks ending May 26, 2001 (week 21) and June 2, 2001 (week 22). When seeking benefits she responded "Yes" to the question "Were you able to work full-time and available for full-time work?" For weeks 21 and 22 she was paid benefits totaling $626.

The initial determination and the appeal tribunal decision found that the employee had been unavailable for work in weeks 21 and 22, and had to repay the $626 received in benefits. They further found that the employee had concealed her unavailability for work in those two weeks resulting in a forfeiture. The commission affirmed and the employee appealed, arguing that since the employer had not appeared at the hearing, there was insufficient evidence demonstrating that her work release privileges had been revoked during weeks 21 and 22. She further argued that even assuming her privileges had been revoked, she was unaware of this fact, and therefore did not intentionally conceal anything. Finally, she argued due process violations because a witness from the sheriff's department had been called by DWD, and because the ALJ questioned the employee's sister "adversely."

Held: The commission is affirmed on the availability issue and on the concealment issue. The employee's own testimony, together with records from the county sheriff's department, reveal that her work release privileges were revoked and that she was aware of this fact. The sheriff department's records were hearsay, but fit within exceptions found within Wis. Stat. § 908.03, and the commission did not rely solely on those records in making its findings. The due process arguments are also rejected. The ALJ had the authority to call the sheriff department's employee as a witness in order to develop the facts, and the ALJ questioned the employee's sister in a fair manner.


Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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