JUDITH ELLENZ, Employee
REGIS BEAUTY SALON, Employer
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 issued its decision on May 10, 1999. The employee filed a timely appeal. The circuit court for LaCrosse County set aside the commission's decision. The commission filed an appeal. On February 8, 2001, the Court of Appeals affirmed the circuit court's set aside order. The Court of Appeals remanded the case to the commission with directions that the commission confer with the ALJ regarding the employee's demeanor and credibility before deciding whether her actions were undertaken with an intentional disregard for the employer's interest, or whether she committed a good- faith error in judgment.
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, and after consulting with the ALJ regarding the employee's demeanor and credibility, the commission makes the following:
The employee worked about 12 years as a stylist for the employer, a hair salon. Her last day of work was December 22, 1998 (week 52), when she was discharged.
The employee was working a reduced schedule since August of 1998 after giving birth to a child. The employee was normally scheduled to work from 1:00 p.m. to 7:00 p.m. Monday through Thursday, and every other Saturday from 9:00 a.m. to 5:00 p.m.
During the holidays the employer has extended hours. All workers were expected to pick up additional hours. The employee had done so for the last ten years of her employment. The salon manager posted the December work schedule sometime in November of 1998. The manager, Ms. Kaluzny, scheduled the employee to work from 2:00 p.m. until 10:00 p.m. on December 23, 1998. After seeing the schedule the employee expressed to the manager that she was not going to work any holiday shifts because she had been there ten years and deserved to have them off. The employee further stated that she could not find a babysitter.
The manager met with the employee on December 3 regarding working on the 23rd. The employee stated defiantly that she had been there ten years and she was not going to work period. The manager informed the employee that if she did not work December 23rd herself, or, with the approval of the manager or the acting manager, Lisa Marie, get someone else to work it for her, it would be grounds for termination.
The employer's written policy regarding scheduling states:
Associates are expected to be ready, willing and able to work when assigned or scheduled by their manager.
Company salons are required to be open for business for all hours established by the mall management. The busiest times for Company salons are during the evenings, and on weekends. Consequently, most employees will be required to work at least two evenings per week and weekends.
Scheduling is the sole responsibility and prerogative of the salon manager. The manager may make scheduling changes as necessitated by business conditions. If you require special scheduling considerations for any legally protected reason, you must advise your manager in writing of the specific requirements for an accommodation.
Associates are not permitted to work outside of the time they have been scheduled without prior approval from their manager.
Any unexcused or unexplained absence, or excessive absenteeism or tardiness may result in discipline up to and including termination. Failure to notify your salon manager of an absence or occasion of tardiness will result in discipline up to and including discharge.
On December 21 Lisa Marie, the acting manager, asked the employee if she had found someone to work her December 23rd hours. The employee responded no. Lisa Marie then asked if the employee was going to. The employee responded no. Based on the employee's responses, Ms. Kaluzny directed Lisa Marie to discharge the employee on December 22. The employee was discharged near the end of her workday on December 22. Lisa Marie was aware of a note on the schedule, which indicated that a co-worker, Katie, would cover for the employee from 9:00 p.m. to 10:00. However, that still left the two hour time span from 7:00 p.m. to 9:00 p.m. that had to be covered and was not.
The only effort the employee made to find a replacement was to ask two other workers, three or four days before December 23rd to work for her on that day. There were at least five other workers the employee could have asked to work for her. The employee knew she would lose her job if she did not work or have the shift covered.
The issue to be decided is whether the employee's actions, which led to her discharge, constituted misconduct connected with her employment.
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 employee objected to the additional hours due to her length of service and childcare responsibilities. However, the employer was not obligated to except the employee from its scheduling policy. Further, the employee received ample notice that she would be required to work on December 23rd or find a replacement. The employee waited until three or four days before December 23rd to make any attempts to find a substitute. The employee claimed that she was seeking other childcare arrangements. However, she should have and could have been attempting to find a substitute and make other childcare arrangements. The employee did not make much of an effort to get someone to work the shift for her. The employee knew from her conversation with the manager on December 3rd that her job was in jeopardy if she did not work the shift. Finally, the employee's claim that she was told that she need only find a closer for the last hour is rejected.
The employee received ample notice that she was scheduled to work. The employee received ample notice that if she did not work she had to find a replacement or she risked losing her job. The employee had ample time to ask other workers to work the shift for her. She waited until the last minute and found someone to only work the last hour for her. Given the amount of notice the employee had and the lack of effort she made to find a substitute, the commission finds that the employee's actions were undertaken with an intentional disregard for the employer's interest.
The commission therefore finds that in week 52 of 1998, the employee was discharged from her employment and for misconduct connected with her work within the meaning of Wis. Stat. § 108.04(5).
The commission further finds that the employee was paid benefits in the amount of $1,257.00 for weeks 52 of 1998 and weeks 1 through 6 of 1999, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03(1).
The final issue to be decided is whether recovery of overpaid benefits must be waived.
Wisconsin Statute § 108.22(8)(c), provides that the department shall waive the recovery of overpaid benefits if the overpayment was the result of departmental error, and the overpayment did not result from the fault of the employee. Under Wis. Stat. § 108.02(10e)(a) and (b), department error is defined as an error made by the department in computing or paying benefits which results from a mathematical mistake, miscalculation, misapplication or misinterpretation of the law or mistake of evidentiary fact, or from misinformation provided to a claimant by the department, on which the claimant relied.
The overpayment in this case results from the commission's reversal of the appeal tribunal decision. Such reversal was not due to department error as defined in Wis. Stat. § 108.02(10e)(a) and (b). Rather, the commission has reached a different legal conclusion when applying the law to the facts found.
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 employee 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.
The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 52 of 1998, and until seven weeks elapsed since the end of the week of discharge and the employee has earned wages in covered employment equaling at least 14 times the weekly benefit rate which would have been paid had the discharge not occurred. She is required to repay the sum of $1,257.00 to the Unemployment Reserve Fund. The initial benefit computation (UCB-700) issued on December 23, 1998, is set aside. If benefits become payable based on work performed in other covered employment a new computation will be issued as to those benefit rights.
For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.
Dated and mailed March 14, 2002
ellenju . urr : 132 : 1 : MC 640.03
/s/ David B. Falstad, Chairman
James A. Rutkowski, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission did consult with the ALJ regarding the employee's demeanor and credibility. The ALJ indicated that he did not credit the employee's claim that she believed she only had to cover the last hour of December 23rd. The ALJ stated that the employee knew she was supposed to obtain coverage for the entire shift but, in the ALJ's words, "didn't want to." Finally, the ALJ acknowledged that there were other individuals she could have asked to work for her but did not. The commission agrees with the ALJ's credibility impressions. The commission disagrees with the ALJ's conclusion that the employee's actions constituted a good-faith error in judgment. The employee knew when the schedule was posted in November that she did not have a babysitter for the 23rd. Despite the fact she had over 23 days to do so, the employee stated at the outset that she would not work the scheduled hours and could not find a babysitter.
Regis Beauty Salon (Onalaska, Wisconsin)
Attorney Jim D. Scott
Attorney Clara Pasos
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