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

Subject: Mary M. Rhoades v. LIRC and Madison Metropolitan School Dist., Case 10-CV-4703 (Wis. Cir. Ct., Dane Co., April 9, 2011)

Digest Codes: MC 630.07 MC 630.09 - falsification of employment application

Digest Summary: The employee, a school psychologist for the employer for many years, resigned in lieu of discharge when the employer discovered a false statement in her employment application which she had filed with the employer almost 15 years before. The false statement was a “no” answer to a question of whether she had ever been found guilty of any violations of law including ordinance violations other than minor traffic violations. The statement was false because she had two convictions for DUI, from some years before. An ALJ decided that the false statement was a disregard of the employer"s interests, but not a substantial disregard, and that therefore the discharge was not for misconduct. On appeal, LIRC reversed the ALJ and found an intentional and substantial disregard of the employer"s interests, and thus misconduct.

Held: LIRC"s decision is affirmed. The employee's admission that she intentionally withheld the information about the prior convictions because she feared she would not be hired if she disclosed them, is substantial evidence that she answered falsely on the employment application. Her falsification is misconduct under the statute. Miller Brewing v. DILHR, 103 Wis. 2d 496, held that falsification on employment application reflects an intentional disregard of the employer's interests, constituting misconduct.

The employee's arguments to the court cited the Wisconsin Fair Employment Act's prohibition on discrimination based on conviction record. However, no question of whether the employer discriminated against the employee under the WFEA has been raised. Miller Brewing held that conviction record falsification is misconduct regardless of the materiality of the offense to the particular job. Whether the employee's convictions were substantially related to her job is not the issue. Lee v. LIRC, 2010 WI App 84 holds that the WFEA does not create a license to lie about conviction records.

The employee's argument that the District must have learned about the convictions anyway through its background check, is rejected. The fact is that the employee knowingly withheld her conviction record.

LIRC was not required to consult with the ALJ regarding credibility in this case. That requirement only applies when LIRC differs from the ALJ in regard to material findings of fact based on an appraisal of credibility. Here, LIRC adopted all of the factual conclusions of the ALJ; the credibility of the employee's testimony was not called into question and LIRC did not differ from the ALJ in that regard.

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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