LISA C GEHLE, Employee

SUPERCUTS, Employer

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:

The employee worked one year as a hair stylist for the employer, a hair salon. She was discharged on January 31, 2007 (week 5).

The issue is whether the actions for which the employee was discharged constitute misconduct connected with her employment.

The employee was absent with notice on October 7 and 8, 2006, after being hospitalized for an injury. Although the employer testified it did not excuse the absence because it never received a medical excuse from the employee, it admits that it never requested a medical excuse from the employee and never notified the employee that the absence was unexcused.

The employee was scheduled to work on January 23 and 24, 2007. She phoned the employer on January 21 to provide notice that she was incarcerated, would definitely miss her shift on January 23, and was not sure she would be released in time to work her shift on January 24. The employee was released from jail on January 23, and immediately phoned the employer who told her that she had already found someone else to work her January 24 shift. The employer considered these two consecutive days of absence as one attendance incident.

The employee was 11 minutes late for work on January 26. She had provided prior notice to the employer that she had a court date that day and could be a few minutes late to work.

The manager of the salon planned to be out of state at a conference on January 30 and 31, 2007. She scheduled the employee to open the salon January 31.

The employee worked her shift on January 30. Later that day, she was arrested for violating the terms of her bail and incarcerated. A police officer, at her request, placed a call to the salon manager and left a message that the employee would not be at work on January 31. The manager received notice in time to locate another stylist to work the employee's shift that day.

The employee was discharged on January 31 based on her attendance record.

The employer's attendance policy (exhibit #1) states that "Any unexcused or unexplained absences, or excessive absenteeism or tardiness may result in discipline up to and including termination. Failure to notify your salon manager of an absence or occasion of tardiness will result in discipline up to and including discharge."

Other than through this statement in its attendance policy, the employer did not provide notice to the employee that her attendance record placed her job in jeopardy.

The commission has been consistent in holding, except in those cases in which the alleged conduct is sufficiently egregious, that, before there can be a finding of misconduct, the employee has to be aware or have reason to be aware that her job is in jeopardy or will be if she engages in the subject conduct. See, e.g., Hainz v. Nelson Industries, Inc., UI Hearing No. 00003095MD (LIRC Oct. 3, 2000); Marcolini v. Alma Public Schools, UI Hearing No. 78-20774EX (LIRC May 29, 1979); Munoz v. LaCosta, Inc., UI Hearing No. 02607640MW (LIRC April 4, 2003).

Here, the general statement in the employer's attendance policy that unexcused absences or excessive absenteeism may result in discipline up to and including termination, without more, is insufficient to have placed the employee on notice that her attendance record placed her job in jeopardy.

The remaining question, then, is whether the subject conduct was sufficiently egregious to relieve the employer of its responsibility to make the employee aware that her job would be in jeopardy if she continued to engage in it.

Generally, absences with notice and for valid reasons will not support a conclusion of misconduct. See, Grijaliba v. Lancaster Mineral Point Milwaukee Care, UI Hearing No. 00608375 (LIRC Feb. 14, 2001). The employee's absences of October 7 and 8, 2006, were for illness/injury, a valid reason. See, Birch v. Nedland Industries, Inc., UI Hearing No. 07200397RL (LIRC June 1, 2007).

What remains then are two incidents (three days) of absence with notice due to incarceration, and one incident of tardiness with prior notice. These three incidents, even though not for valid reasons, are not sufficiently egregious to support a conclusion of misconduct. See, e.g., Gameson v. Woodmans Food Market, UI Hearing No. 04002237LX (LIRC Aug. 31, 2004) (four invalid absences over a 15-month period not misconduct); Birch, supra. (two invalid absences and two early departures with notice over a 13-month period not misconduct).

The commission therefore finds that in week 5 of 2007, the employee did not voluntarily terminate her employment within the meaning of Wis. Stat. § 108.04(7) but that she was discharged and her discharge was not for misconduct within the meaning of Wis. Stat. § 108.04(5).

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 5 of 2007, if otherwise qualified.

Dated and mailed June 18, 2007
gehleli . urr : 115 : 1 MC 605.05  MC 605.09

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, 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 interpretation of the relevant law.

cc:
Super Cuts (Middleton, Wisconsin)
Dave Bunker, Agent

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/06/25