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

Subject: Judith Miller v. LIRC and Ultra Mart, Inc., No. 94-CV-2533 (Wis. Cir. Ct. Waukesha County June 8, 1995)

Digest Codes:   MC 630.16   MC 675 

The employe was a bakery clerk for the employer, which had a well-established rule prohibiting employes from eating any of the employer's food on the job unless the employe had purchased it, in which case the employe could eat it in the employer's break room. The employer had informed the employe of this rule at the time she was hired, and had posted the rule in writing. The written rule included a warning that consumption of any of the employer's foodstuffs would be considered theft and subject the employe to immediate termination.

Approximately six months after the employe was hired, the employer's loss prevention specialist observed her remove a cinnamon roll from the bakery case, tear a piece off the roll and eat that piece. When questioned about this, plaintiff asserted that she had accidentally dropped the tray on the roll and crushed it, and therefore intended to cut it up for samples to customers. In testimony at the hearing, the employe conceded that she "sampled" the roll because it was from a new bakery whose product she had not previously sampled. The employer discharged her for violation of its rule. The commission found misconduct.

Held: Affirmed. The actual value of the food consumed is not determinative. The employer's rule is designed to prevent theft and violation of this rule constitutes a substantial disregard of the employer's interests. The court added that customers do not like employes handling and ingesting food.

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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