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

DANNETTE THURMAN, Employee

SEEK CAREER/STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06603144MW


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 16 of 2006, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employer's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed October 6, 2006
thurmda . usd : 178 : 4    MC 606  MC 605.05

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In her petition for commission review, the employee argues that she gave the employer notice of her absences on time and that they were for valid reasons. The commission disagrees. The employer proved that on seven occasions the employee called in either after her shift started or after the employer's deadline of one hour before work, which the employer required. On one occasion, the employee never called the employer at all. The employee's reasons for absence on these occasions were not valid. The employer warned the employee that her employment was in jeopardy due to her attendance problems, but she was again absent two more times for invalid reasons and did not give the employer the required notice. The employee's attendance record taken as a whole demonstrated a substantial disregard for the employer's interests in regular attendance and therefore amounts to misconduct.

Effective for discharges on or after April 2, 2006, the law requires that the commission consider whether a discharge for failure to give notice of absence disqualifies a claimant before considering whether that discharge might be for misconduct. In this case, the employer did not establish one of the elements of this new attendance disqualification at Wis. Stat. § 108.04(5g). The employer admitted that it did not uniformly apply its policy because its client wanted the employee to keep working for it. Therefore, the commission did not find that the employer met the lower evidentiary burden of this section and proceeded to analyze whether it had met the higher evidentiary burden of misconduct. It concludes that the employer did establish that the employee's poor attendance amounted to an intentional and substantial disregard of the employer's interests and therefore constituted misconduct.

 


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