DWD and LIRC continue to ignore court precedent on substantial fault

After the Supreme Court decision in Operton v. LIRC, 2017 WI 46, and an appeals court decision in Easterling v. LIRC, 2017 WI App 18, the Department of Workforce Development took no action to change its practices and follow these binding court decisions. Accordingly, parties needed to appeal their initial determinations in order to get unemployment law to be followed.

It is becoming apparent, however, that numerous appeals are now needed to get unemployment law to be followed whenever claimants are involved. Marilyn Townsend, Operton’s legal representative, just won an unemployment case in circuit court where DWD and the appeal tribunal not only continued to ignore Operton in an almost identical situation — namely a charge of several inadvertent errors by the employee — but the Labor and Industry Review Commission affirmed a finding of substantial fault by adding alleged warnings for which there was NO evidence in the record. As the circuit court judge explained (emphasis supplied):

The stated reasons for discharge were allegations that there were receiving issues on three separate dates in January of 2018. The store’s witness said he was only familiar with the incident that occurred on January 13th. The employer must prove the allegations upon which the discharge was based. Standing alone, this court does not believe that the January 13th incident [concerning a document mis-match between inventory and an invoice] is substantial evidence of substantial fault.

The plaintiff stated that she believed two pieces of paper merely stuck together and that is the reason the invoice was not scanned properly. She realized on the same day that an invoice could not be matched to the inventory and the [employer] witness (Ovsak) said she came to him and explained the problem. Apparently the problem was resolved when they received another invoice from the supplier on the following Monday.

There is no argument or claim that the plaintiff did anything intentionally wrong. In fact, she discovered her error and reported it to her supervisor. It appears that the incident was an inconvenience for the employer, but nothing more. The Commission agreed with the ALJ that the employee’s conduct did not rise to the level of an intentional and substantial disregard of the employer’s interest. There is no evidence that this single act was anything but an inadvertent error.

* * *

The Commission modified the decision to of the ALJ to fit the conclusion the ALJ wanted to reach. It decided that the January 13th incident, along with three prior coaching incidents during the second half of the fall of 2017, served as the reasons for discharge. Specifically, leaving a receiving door unlocked in August of 2017, an alleged incident of being belligerent and speaking with a raised voice on November 9th, and failing to accurately count some DVD’s on November 22th. The plaintiff says those earlier coachings are not relevant in determining whether the discharge after those coachings was for substantial fault where the employer has failed to prove the subsequent allegations that actually prompted the discharge.

The employer offered no proof at all of two of the three grounds alleged in the discharge document. While it offered proof that the January 13th, 2018 incident occurred, that act in the opinion of this court was not evidence of substantial fault. The Wisconsin Supreme Court has ruled that careless conduct does not equal substantial fault. Operton v. LIRC, 2017 WI 46, 375 Wis.2d 1.

The Commission relied on the prior coachings in 2017 as well as the January 13th incident to justify the finding of substantial fault. . . . the mere fact that [the Commission] did indicates that the Commission felt it necessary to essentially correct and bolster the findings of the ALJ in order to try and justify denying the plaintiff benefits.

Those prior coachings appear to be unrelated to the action on January 13th. They appear to be minor infractions and they did not lead to a dismissal standing on their own. The Commission cannot create evidence of substantial fault by adding the prior unrelated coachings to the January 13th incident.

So, now not only is DWD ignoring Operton, but administrative law judges at the Department’s hearing offices are also ignoring Operton. And, the Commission is also now ignoring Operton and seeking to get around Operton by adding arguments and connecting evidence in ways that the record obviously does not support.

The Department and the Commission are supposed to be NEUTRAL entities that are supposed to assess the evidence presented by employers to meet their heavy burden of persuasion in order to disqualify a claimant from receiving unemployment benefits when misconduct or substantial fault have occurred.

What this case illustrates is that the Department, the hearing offices, and the Commission are ignoring these obligations and instead looking to disqualify claimants on nothing more than whim and pretense, even when courts have directly told them otherwise.

Given the hundreds to thousands of people who apply for unemployment benefits every week in Wisconsin, it should in NO way require an attorney well-versed in the intricacies of unemployment law take an appeal into court simply so that unemployment law might be followed. An initial determination, a hearing before an administrative law judge, and an appeal to the Commission all failed in this case to follow clear and unmistakable black letter unemployment law.

An employee having to take up an appeal to circuit court and find an attorney for that appeal for the sake of simple justice in an unemployment case is in practical terms not possible for the hundreds and thousands seeking unemployment benefits every week of the year in Wisconsin. Something is fundamentally wrong when claimants have to go to such lengths simply to get the unemployment benefits due them if the law had been followed in the first place.

Note: Links to the appeal tribunal and LIRC decisions will be added.

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