STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DAVID R ERICKSON, Employee

BERGQUIST CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06201689EC


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 has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked just over four months in 2006 as a third shift machine operator for the employer, a manufacturer.

The employee was discharged on July 9, 2006 (week 28), for attendance deficiencies. The issue is whether the attendance deficiencies for which the employee was discharged justify the denial of benefits pursuant to Wis. Stat. § 108.04.

Prior to April 16, the employee had exhausted his vacation and personal leave.

The employee's attendance record included the following:

April 16-called in sick
May 15-called in sick
May 25-absent because car broke down/provided notice
June 13-no call/no show
July 5-no call/no show
July 6-no call no show

The employer has an attendance policy (Exhibit #1) which provides that two consecutive no call/no show absences would result in immediate termination, and that six occurrences of absence/tardiness within a 12-month period would subject a worker to disciplinary action, up to and including termination. The employer relied upon these provisions of its attendance policy to discharge the employee.

The employer's attendance policy does not state with particularity what constitutes a single occurrence of absence/tardiness, or the process for providing notice of absence/tardiness; and provides that the employer, in its discretion, may impose discipline, including termination, prior to the accumulation of six occurrences or at any time it feels circumstances warrant discipline.

In reviewing a discharge based on absence or tardiness without adequate notice, the first consideration is whether Wis. Stat. § 108.04(5g) applies. See, Dykstra v. Sulzer Machine & Mfg., Inc., UI Hearing No. 06201124RH (LIRC Oct. 6, 2006).

Wisconsin Statute § 108.04(5g)(a) requires that an employer's policy satisfy the criteria stated in Wis. Stat. § 108.04(5g)(d) in order for the remaining provisions of Wis. Stat. § 108.04(5g) to apply. Here, since the employer's attendance policy does not state with sufficient particularity what constitutes a single occurrence of tardiness or absenteeism, and does not specifically describe the process for providing adequate notice, within the meaning of Wis. Stat. § 108.04(5g)(d)1.; and, since this policy provides that exceptions to its uniform application may be made in the employer's discretion, within the meaning of Wis. Stat. § 108.04(5g)(d)4. (1), the requirements of Wis. Stat. § 108.04(5g)(d) are not met here, and Wis. Stat. § 108.04(5g) does not apply.

The inquiry then turns to whether the employee's attendance record satisfies the definition of misconduct within the meaning of Wis. Stat. § 108.04(5).

Here, the employee, within a six-month period of time, had two absences for illness, a valid reason; one absence due to car problems, which, in the absence of evidence that this was a recurring explanation, was a valid reason; and three no call/no show absences. As the commission stated in Merkel v. Lang Furniture, UI Hearing No. 06001929MD (LIRC Oct. 19, 2006):

...While the commission might previously have been inclined to find misconduct under these circumstances [three consecutive no call/no show absences and one 2.5-hour tardy without notice after prior warning], a recent amendment to the unemployment insurance statute appears to call for a different result. Effective for separations occurring on or after April 2, 2006, the legislature has determined that individuals who are absent on five or more scheduled workdays without adequate notice to the employer, and who satisfy certain statutory requirements, will be ineligible to receive benefits until six weeks have elapsed since the discharge and the employee earns wages equal to at least six times his weekly benefit rate. See Wis. Stat. § 108.04(5g). By contrast, the misconduct disqualification renders the employee ineligible for benefits for seven weeks after the discharge and until the employee has earned wages equal to at least fourteen times his weekly benefit rate. See Wis. Stat. § 108.04(5). The employee in this case did not have a sufficient number of absences without adequate notice subsequent to the issuance of the employer's policy to fall within the purview of Wis. Stat. § 108.04(5g). The commission believes that, in a case like this, where the only evidence adduced is the employee's absence without proper notice, to impose the greater misconduct disqualification on an individual who has too few absences to be subject to the lesser disqualification of the newly-enacted attendance provision would be an anomalous result which the legislature did not contemplate.

The same analysis would apply here. The employee's only attendance deficiencies without notice and valid reason were three no call/no show absences. Prior to the implementation of Wis. Stat. § 108.04(5g), the commission may have been inclined to find misconduct under these circumstances. However, the fact that, under this new attendance provision, a worker would have to incur at least five no call/no show absences in order for the lesser six-week/six times the weekly benefit rate penalty to apply, militates against a conclusion that the employee's three no call/no show absences would support a conclusion of misconduct and the consequent imposition of a greater penalty.

The commission therefore finds that in week 28 of 2006, the employee did not voluntarily terminate his employment within the meaning of Wis. Stat. § 108.04(7) but that he was discharged and his discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 28 of 2006, if otherwise qualified.

Dated and mailed November 10, 2006
erickda . urr : 115 : 4  MC 606  MC 605.05  MC 605.09

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission did not confer with the administrative law judge before reversing her decision, because its reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.

cc: Berquist Co.



Appealed to Circuit Court. Reversed, September 4, 2007.

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Footnotes:

(1)( Back ) See, Dykstra, supra.

 


uploaded 2006/11/13