MICHAEL P HERR, Employee

MCESSY INVESTMENT CO, 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 for about two years as a crew member for the employer, a fast food restaurant. His last day of work and date of discharge was February 1, 2010 (week 6).

The employer's business is in the food industry, and they have strict rules about hygiene. One of those rules requires all males to be clean-shaven, excepting a well-trimmed mustache. Failure to comply with this policy can result in discipline, including termination. The employee was aware of the policy.

During his employment, the employer verbally warned the employee about his inadequate shaving on several occasions. On January 5, 2010, the employee came to work unshaven with a wispy beard and sideburns. The employer warned him verbally one final time that he needed to shave before coming to work. On January 6, 2010, in the employer's judgment the employee was again unshaven. The employer wrote him up, sent him home, and suspended him for three days.

On February 1, 2010 (week 6), the employee came to work unshaven. The employer immediately discharged him for his continued violation of the company shaving policy.

The issue to be decided is whether the employee's discharge was for misconduct connected with the employee's employment.

There are several cases concerning grooming and misconduct. In Consolidated Const. Co., Inc. v. Casey (and DILHR), 71 Wis. 2d 811 (1976), the Wisconsin Supreme Court stated:

We would emphasize that the ultimate legal question here is not whether Consolidated's grooming code was legally valid, or whether Consolidated could discharge Mr. Casey for his refusal to comply. The question is only whether there was statutory "misconduct." The principle that violation of a valid work rule may justify discharge but at the same time may not amount to statutory "misconduct" for unemployment compensation purposes has been repeatedly recognized by this court. Fitzgerald v. Globe-Union, Inc. (1967), 35 Wis. 2d 332, 151 N.W. 2d 136; Milwaukee Transformer Co. v. Industrial Commission (1964), 22 Wis. 2d 502, 126 N.W. 2d 6. The law presumes that the employee is not disqualified from unemployment compensation, and places on the employer the burden of introducing credible evidence sufficient to convince DILHR that some disqualifying provision -- here "misconduct" -- should bar the employee's claim. Kansas City Star Co. v. ILHR Dept. (1973), 60 Wis. 2d 591, 602, 211 N. W. 2d 488.

Consolidated Construction Co. involved a beard. Casey refused to shave his beard and was discharged. The court stated that a grooming rule imposed for reasons of safety would be reasonable. The court remanded the case for determination of whether an alternative existed (such as a snood) and whether Casey's beard was, in fact, hazardous. On remand, the Commission found that it wasn't. Benefits were allowed.

In Gossen v. American Spring/Brake, Inc., UI Dec. Hearing No. 90-402017 (LIRC May 1, 1991), the employer's witness testified that the reason for the employer's rule requiring that a warehouse laborer's hair be cut at or above the collar and that a part of the worker's ear be visible was that: "It is just our policy." The employer received no complaints from customers concerning the employee's hair and that there was no safety concern for the employer regarding the length of hair on a male. The employer had no policy concerning hair length for females. The employee worked in the warehouse and rarely saw customers. The commission concluded that the employer failed to justify its rule as reasons of safety or business necessity. Since the employer did not establish the reasonableness for its requirement that, the employee's actions were not misconduct.

In Tomich v. Wal Mart Stores Inc, UI Dec. Hearing No. 92603834MW (LIRC Mar. 17, 1993), the commission pointed out that the Supreme Court has held that when considering a breach of company work rules, the reasonableness of the rule must be assessed in light of the purpose of unemployment compensation rather than solely in terms of efficient industrial relations. Milwaukee Transformer Co. v. Industrial Comm., 24 Wis. 2d 502, 512 (1964). The Court went on to state that the "reasonableness" of the rule from the point of view of labor management/ relations is less of a concern than the unreasonableness of the conduct of a worker in breach of the rule. The critical question is whether the worker acted in an intentional and unreasonable interference with the employer's interests. Id.

In this case, the employer did not offer any rationale for its policy in terms of safety or business necessity. The ALJ inferred a rationale but that is not adequate. The employer made a reasonable business decision to discharge the employee after he violated its clean shaven standard on several occasions. However, the discharge was not shown to be for misconduct.

The commission therefore finds that in week 6 of 2010, the employee was discharged from his employment but that the discharge was not for misconduct connected with his work 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 6 of 2010, if otherwise qualified.

Dated and mailed August 27, 2010
herrmic . urr : 178 : 1 MC 698

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss credibility with the ALJ prior to deciding to reverse. Its reversal is as a matter of law and not due to any differing assessment of witness credibility or demeanor.

cc: Mcessy Investment Co. (Milwaukee, Wisconsin)

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