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


Subject: Freight Runners Express Inc. v. LIRC and Andrew Dupont, Case 11-CV-3431 (Wis. Cir. Ct., Milwaukee Co., November 17, 2011)

Digest Codes: CP 370 - Partial unemployment; UW 975 - Partial unemployment; MC 630.01 - Dishonesty; MC 610.10 - Disloyalty to employer; PC 717 Hearing, Continuance

The employee worked for the employer as an airplane pilot, flying freight routes from Appleton to Milwaukee in the evening and then back to Appleton on the following morning. During his 7+ hour overnight layovers in Milwaukee, he had no obligations or duties to the employer and was free to do what he wanted. The employee also had a pending UI benefit claim based on other, previous, employment. He reported his work for the employer to the department, but he only reported as hours of work the hours he spent flying for the employer, not the hours he spent in Milwaukee on his layovers. For a number of weeks, he was paid partial unemployment benefits.

Two related cases grew out of this. One case involved an assertion eventually raised by the employer, that the employee was on duty while laying over in Milwaukee, was thus working for it full-time, and was thus ineligible for partial UI benefits because of Wis. Stat. § 108.05(3)(c), which says that a claimant is ineligible for any week in which they work 40 or more hours. After an investigation, a department adjudicator agreed with this and found the employee to be ineligible and to have been overpaid. However, on the employee’s appeal, an ALJ reversed this, holding that the employee was not working for the employer during the layover hours, and that he therefore was not working for the employer a total of 40 or more hours per week within the meaning of § 108.05(3)(c). LIRC affirmed this decision.

The other case arose when the employer eventually discharged the employee. The employer discharged the employee because of a letter the employee sent to the department in the course of the investigation of the hours-of-work benefit eligibility issue. In that letter the employee had stated his contention as to how many hours he worked for the employer and provided copies of flight reports supporting his contention. The employer asserted that the employee’s contentions to the department about how many hours he worked were false, and incorrectly painted the employer as violating federal regulations, and that this was misconduct. A department adjudicator found no misconduct, and on the employer’s appeal an ALJ and then LIRC affirmed this.

The employer brought two separate circuit court actions to appeal these decisions, and the actions were then consolidated.

Besides arguing the merits in its appeals, the employer also argued that it had been deprived of a fair opportunity for hearing. The employer acknowledged that it had failed to bring certain witnesses it needed to the hearing. It asserted that because of statements made by the ALJ, it assumed the hearing would be continued on another day and that it would thus be able to present those witnesses on that day, and that in reliance on those statements it didn’t make any effort to get the witnesses there that day even after it realized it needed them, but that the ALJ then ran the hearing later than she had (allegedly) first said she would, finishing it and not granting the employer’s request that it be continued to another day, so that the employer did not have the chance to present those witnesses.

Held: LIRC’s decisions are AFFIRMED.

The court determined that “due weight” deference was the appropriate review standard for the issue involving the hours-of-work issue under § 108.05(3), because it did not appear that LIRC had developed the necessary expertise to place it in a better statutory judgment making position than that of the court. However, the court determined that LIRC fulfilled the 4 standards for “great weight” deference on the misconduct issue, citing Bunker v. LIRC, 2002 WI App 216. The court reasoned that LIRC satisfied the requirement that it be charged with administering § 108.04(5), that LIRC’s interpretation of § 108.04(5) is longstanding although not necessarily consistent, that LIRC had applied its expertise and specialized knowledge to numerous misconduct cases, and “[f]inally, this Court is unaware of any factually similar misconduct cases that have led to a non uniform or inconsistent application of the law of misconduct. Therefore, the Court concludes that LIRC’s decision on the issue of misconduct is entitled to great weight deference.”

The Court found the ALJ’s decision to deny employer’s request for a continuance was proper and reasonable. The employer’s counsel acknowledged that he didn’t bring the witnesses in the first place because he didn’t realize he needed them. The Court agrees with the ALJ’s observation that it is the attorney’s responsibility to prepare enough to know what their witnesses have knowledge about and can or cannot testify about, and to bring any of the necessary witnesses.

Regarding the § 108.03(5) hours of work issue, the Court noted that there were disputed issues of fact about the extent of employer control and employee obligations during the layover period and that the ALJ had accepted the credibility of the testimony of the employee, with which LIRC agreed. In addition, LIRC’s interpretation that under § 108.05(3)(c) “work” refers to the number of hours Dupont was either under the control of Freight Runners or had obligations or duties to it, is both in compliance with the purpose of the statute and the most reasonable interpretation. Because while the employee waited in the Milwaukee area he did not have any obligations or duties to the employer and the employer did not exercise any control over the employee, the employee did not work for the employer during the hours that he waited in the Milwaukee area between flight routes, and the determination that he was eligible for partial unemployment insurance benefits under Wis. Stat. § 108.05(3) is reasonable and proper.

Regarding the § 108.04(5) misconduct issue, the Court agrees that Dupont’s actions in disagreeing with the information presented by the employer did not evince misconduct. His letter did not display an intentional or substantial disregard of the Freight Runners’ interests. Instead, the letter was his good faith effort to describe to the Department what he believed to be relevant facts to his partial unemployment insurance benefit claim. For that reason, this Court affirms LIRC’s conclusion that Mr. Dupont’s conduct failed to amount to misconduct under the Boynton test.


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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