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

Subject:  Cheryle Carlson v. LIRC and Impressions of Increase, No. 15-CV-0281 (Wis. Cir. Ct., Milwaukee Co., November 5, 2015)

Digest Codes: MC 602 BR 335.035 PC 757

The employee (Carlson) was a non-medical home care provider for an older couple, the wife of which was cognitively disabled. On the employee's last day of work, a conflict arose between the employee and her roommate. The employee asserted that the roommate harassed her verbally and physically. The employee believed it was no longer safe for her to live in her apartment. She loaded her belongings in her car and then reported for her shift with her clients. After her shift was over, the employee stayed and talked to her clients about her situation. The husband invited the employee to stay there. The employee accepted. She moved her belongings into the clients' home. Later, they all went out to dinner together. The husband paid for the employee's meal. The husband drank alcohol at dinner. He drove home and was in a minor accident. The couple's family, trying to contact them, called the owner of the employer, and he went to the client's home and found the husband intoxicated and unable to stand, with the employee yelling from the bedroom she had moved into that she could be fired because her boss was in the house. The employee was discharged. UI benefits were initially paid, but subsequently an Appeal Tribunal found the employee had been discharged for “Substantial Fault,” and that the benefits paid had been erroneously paid and would have to be repaid. On appeal, LIRC affirmed on both the substantial fault issue and the benefit repayment issue

Held:  LIRC's decision is affirmed as to the substantial fault issue, but is reversed as to the benefit repayment issue.

As to the substantial fault issue, LIRC's decision is entitled to “great weight” deference. LIRC's determination that the employee was discharged for substantial fault within the meaning of 108.04(5g) is reasonable and supported by credible and substantial evidence. The employer's policies prohibited client abuse, immoral conduct and borrowing money from clients or their families. The employer also had a right to expect in this situation that the employee would give it notice of her intent to stay at the client's home. LIRC reasonably concluded that it was within the employee's control to inform her employer of the situation that occurred, and it was reasonable for LIRC to conclude that the employer's policy regarding the behavior of its employees in interacting with clients was a reasonable requirement of employment.

As to the benefit repayment issue, LIRC had argued that the erroneous payment occurred because the employee was inaccurate in what she told the Department about the reason she was given for her termination. However, the court found that the employer's owner had made the same statement about the reason given for the discharge (that the employee's services were no longer needed). The employee cannot be faulted for coming to the conclusion that she had been laid off based on the ambiguous and uncertain way she was terminated.


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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