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

SHAREKA K MCGEE, Employee

GRZECA LAW GROUP SC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603868MW


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 for about six years as an administrative assistant for the employer, an operator of a legal services business. Her last day of work was May 10, 2007 (week 19).

The employer requires workers to arrive at work before their shift began and to begin working at their scheduled starting time. The employer defines tardiness as "one minute after the scheduled starting time."

The employee was required to clock in on her computer. During the last eight months of her employment, the employee was tardy reporting to work on nine occasions and returned from lunch late on twelve occasions. She received warnings for tardiness, the last being issued on May 7, 2007 (week 19). At the time, the employer allowed her to adjust her schedule to allow her to report to work fifteen minutes later each day and informed her that the next infraction would result in her dismissal. She was late for a variety of reasons including getting her children organized in the morning and buying lunch for co-workers. On her last day of work, she clocked in one minute late and was discharged.

The issue presented is whether the employee was discharged for misconduct connected with the work under Wis. Stat. § 108.04(5).  (1)

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment insurance in the United States, the court said, in part, as follows:

" . . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The question of an employee's intent and attitude is so important in deciding whether there has been "misconduct," that it is necessary to consider whether an employee's pattern of attendance shows any trend towards improvement, in frequency and time, signaling a serious effort by the employee to correct a past problem of poor attendance. Harmon v. Ameritech Services Inc., UI Dec. Hearing No. 02607385MW (LIRC Apr. 8, 2003). The commission has held that recent good attendance can overcome an earlier, poor attendance record. Kellum v. Wisconsin Porcelain Co. Inc., UI Dec. Hearing No. 05005484MD (LIRC Apr. 13, 2006); Brown v. Banc One Services Corp., UI Dec. Hearing No. 02608791MW (LIRC Apr. 11, 2003); Voight v. Schreiber Foods Inc., UI Dec. Hearing No. 99002877WR (LIRC Dec. 28, 1999). It is appropriate to apply that principle in this case.

The employer tracked the employee's tardiness back to September of 2006. In September and October, the employee was late four times by more than an hour. The employee also received four warnings during those months. The employee was not late in November or December of 2006. The employer did not record the employee as being tardy in January of 2007. (The employer was installing time software and had given workers leeway to get used to the system.) Thus, the employee went three months without a recorded tardy. The vast majority of the employee's tardiness occurred in February of 2007, during which she was tardy on thirteen occasions. In February of 2007, she was tardy on two occasions for more than fifteen minutes, but the vast majority of the instances of tardiness were under ten minutes. The employee received a verbal and written warning in February for her lateness. The employee was tardy for work and late from break on March 1, 2007. The employer did not record the employee as being tardy the remainder of March, or in April of 2007. The employee showed a vast improvement over her prior record. The employee was then three minutes late on May 7. On May 11, the employee clocked in one minute late, although she was at her workstation prior to the start of her shift. Thus, in the last two months of her employment the employee missed four minutes of work. Considering the employee's record as a whole, the commission concludes that the employee did improve her attendance in response to the employer's warnings, particularly in the latter part of her employment. Such improvement leads the commission to find that the employee's discharge was not for conduct that demonstrated an intentional and substantial disregard for the employer's interests.

The commission therefore finds that in week 19 of 2007, the employer discharged the employee but not for misconduct connected with her work 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 19 of 2007, if she is otherwise qualified.

Dated and mailed October 26, 2007
mcgeesh . urr : 132 : 6 : MC 678

/s/ James T. Flynn, Chairman

/s/ Ann L. Crump, Commissioner

 


ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority opinion in this case. The employee was aware of the employer's expectations, namely, that she appear for work on time. The employer warned the employee that her ongoing tardiness, and extended breaks, were jeopardizing her employment. Indeed, the employer specifically told the employee on May 7, that if she was one minute late she would be discharged. On that same date, the employer adjusted the employee's starting time to allow her to begin work 15 minutes later than her previous starting time. Despite such accommodation and warning, and seven prior warnings, the employee was one minute late just three days later. Unlike the majority, I do not believe that the fact the employee was at her workstation on time detracts from a finding of misconduct. The employee was busy attending to personal matters when it would have been easy for her simply to clock in on time.

When deciding whether a worker's attendance record rises to the level of misconduct the commission examines the worker's entire attendance record that led to the discharge, and does not focus on the final incident. The employee was late reporting for work or reporting for work following her breaks on 21 occasions in the last nine months of her employment. The employee was not late for generally valid reasons. The final occasion was simply another example of the employee placing her own personal interests over the employer's interests.

__________________________________
/s/ Robert Glaser, Commissioner

 

 

cc: Attorney Jerome Grzeca



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Footnotes:

(1)( Back ) Wisconsin Statute § 108.04(5g) provides that an employee who has been discharged for failing to provide notice of excessive tardiness 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 her weekly benefit rate. In this case, the employer did not discharge the employee for failing to give notice of tardiness, but for her tardiness. Thus, her discharge does not fall within the purview of Wis. Stat. § 108.04(5g).

 


uploaded 2007/10/31