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

Subject: Rісkеу Νеаl v. Kohl's Department Store and LIRC, Case No. 10-CV-1453 (Wis. Cir. Ct., Milwaukee Co., July 27, 2010)

Digest Codes: MC 687

Digest Summary: The employee worked as a supervisor for the employer, a retail department store. As an area supervisor at the store, the employee had a set of keys to the premises, cash registers, and storerooms. The employer's policies required employees to immediately report to the employer any lost or broken keys. Seven years before the discharge, the employee had lost his keys and waited three hours to report the loss. At the time, the employer warned the employee he would be subject to discharge should same reoccur. On August 4, 2009 at around 11:30 p.m., the employee discovered that his keys were missing. He thought he had left them in the car of a co-worker who had given him a ride home and so did not report the keys as missing until 8:00 p.m. the next evening (the time he was able to speak with the co-worker and learn that he in fact had not left the keys in the co-worker's car). The commission found misconduct. Despite the length of time between warnings, the stringency of the employer"s warning for a delay of only three hours gave the employee notice of the seriousness with which the employer took the lost key reporting requirement. The employer's rule was reasonable, despite any unlikelihood that one finding the keys would know they were for the store, and the employee's extended delay in reporting their loss went beyond an isolated instance of negligence to misconduct.

Held: AFFIRMED. First, the court agreed with the commission's argument that the latter's legal conclusion of misconduct was entitled to great weight deference. Second, the court found that conclusion of misconduct reasonable. The employee knew that the employer considered a delay of only three hours to be a serious policy violation, yet the employee intentionally delayed reporting his missing keys for 21 hours. This failure by the employee was an intentional and substantial disregard of the employer's interests and the employee's obligations and, as such, misconduct under Wis. Stat. 108.04(5).

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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