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

TARA A SCHMIDT, Employee

CORPORATE CONTRACTORS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08001143MD


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 the employer, a construction business, for three years as an accounting assistant. Her last day of work was December 10, 2007 (week 50).

The employer's handbook states that job abandonment, including walking off the job without a supervisor's approval, is grounds for discharge. The handbook does not specify that any certain number of absences without notice will constitute job abandonment, nor does it contain any directives requiring employees to provide notice of absence at a specific time or in a specific manner.

The employee missed work on Tuesday, December 11, and Wednesday, December 12, 2007, because she was in jail. Although the employee was unable to provide personal notice of her absences, her fiancé also worked for the employer, and the employee believed he had provided notice on her behalf. The employer, however, had no record of having received notice from the employee's fiancé.

On December 12, 2007, a Huber officer called the employer to verify the employee's employment status. The Huber officer informed the employee that the employer had verified her employment and that she would be released for work the next day. Later that evening, however, the employee was told that the employer had called the jail and directed that the employee was not to report for work. The following morning the Huber officer contacted the employer to confirm the employee's status and was told that the employee was no longer employed there. A document prepared by the employer on December 13, 2007, indicates the employee resigned effective December 11.

The issue to be decided is whether the employee quit or was discharged and whether she is eligible for benefits based on that separation.

The employer contended that the employee quit by missing work two days in a row without notice. However, the employer has no policy notifying workers that it considers two consecutive absences without notice to constitute job abandonment, and the employee had no reason to presume this was the case. It is clear from the record that the employee had no intention of quitting. While the employee's fiancé may not have provided notice of the employee's absence, the employee's assumption he would do so was not unjustified. Further, the employee made arrangements to begin Huber release on the third day of absence, December 13, and on December 12, the employer received a call from the jail confirming her employment. Consequently, the employer was aware by the second day of absence of the reason for the employee's absence, and knew that she intended to return to work. It nonetheless prepared separation papers and notified the jail that she no longer had a job. Under the circumstances, the commission concludes that the employer was the moving party in the separation.

Having concluded that the employee's separation was a discharge, the final question to resolve is whether it was for misconduct connected with her employment.

In Boynton Cab v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation 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 employe, 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 employe'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 employee was discharged because of a two-day absence from work without notice. The employee's absence was not for a valid reason, as she was incarcerated due to her own blameworthy conduct. However, two consecutive no-call-no-shows, even for invalid reasons, is not sufficient to warrant a finding of misconduct under the facts of this case. The only other attendance infractions on the employee's record were two days of absence due to illness in November, and an absence in June for an unspecified reason. The employer does not apply progressive discipline, and it was not established that the employee was aware that further attendance violations would cost her her job. Moreover, the employer did receive notice of the employee's whereabouts on the second day and understood that she intended to return to work. The employee's overall conduct, while unsatisfactory to the employer, was not undertaken in wilful and substantial disregard for the employer's interests.

The commission, therefore, finds that in week 50 of 2007, the employee was discharged and not for misconduct connected with her employment, 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 50 of 2007, provided she is otherwise qualified. There is no overpayment as a result of this decision.

Dated and mailed June 20, 2008
schmidt.urr:164:1 VL 1001 . 09

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of this matter is not based upon a differing assessment of witness credibility, but is as a matter of law.


cc: Corporate Contractors, Inc. (Beloit, Wisconsin)


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