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

MARCI A DAKE, Employee

WAREHOUSE SPECIALISTS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11400248AP


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 11 months as a quality auditor for the employer, an assembler of medical devices. Her last day of work was December 22, 2010 (week 52), when she was discharged for accumulating too many points under the employer's attendance policy.

The employer has a written, no-fault attendance policy. The policy provides for discharge, at the company's discretion, upon the accumulation of six points in a rolling six-month period, although the employer reserved the right to bypass any step in the disciplinary process and move immediately to discharge, as deemed necessary in the best interests of the company. An absence is defined as any "unscheduled" time away from work for reasons other than a vacation day, personal day, or holiday. An absence with notice counts as one point. A tardy is defined as punching in one or more minutes late. A tardy, if under two hours, counts as one-half point.

The employee was scheduled to begin work at 6 a.m. On July 30, the employee went home sick at 7 a.m. and was assessed one point. The employee was tardy on August 11 by five minutes and assessed one-half point. No notice or reason was provided. On September 10, the employee went home sick at 7:35 a.m. and was assessed one point. The employee received a verbal warning on September 14 concerning her attendance. The employee was five minutes late, without notice or reason provided, on September 15 and was assessed one-half point. The employee went home sick at 6:30 a.m. on September 27 and was assessed one point. The employee received a written warning on October 6. The employee was late, without notice or reason provided, on October 21 by 22 minutes and assessed one-half point. The employee received a letter of final warning on October 27. She was absent from work with notice due to illness on November 27 and assessed one point. On December 3, the employee was issued a second letter of final warning.

The employee punched in two minutes late to work on December 22 due to slippery roads. She was assessed one-half point, which brought the employee's total point accumulation over a six-month period to six. The employer discharged the employee for accumulating too many points under its attendance policy.

In reviewing a discharge based on attendance policy violations, the first consideration is whether Wis. Stat. § 108.04(5g) applies. See, Dykstra v. Sulzer Machine & Mfg. Inc., UI Hearing No. 06201124RH (LIRC Oct. 6, 2006).

Wisconsin Stat. § 108.04(5g) provides that individuals who are absent on five or more scheduled workdays without adequate notice to the employer or are tardy on six or more scheduled workdays without adequate notice to the employer 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 his weekly benefit rate, if the employer has a written policy that meets the statutory requirements and the employer has issued the employee at least one warning for violating the policy within the 12 months prior to the discharge.

Here, Wis. Stat. § 108.04(5g) does not apply. The employee was not discharged for a failure to give adequate notice of absences or tardiness but for the absences and instances of tardiness themselves.

The next issue to be decided is whether the employee was discharged for misconduct connected with her employment under Wis. Stat. § 108.04(5).

Misconduct connected with employment means conduct showing an intentional and substantial disregard of the employer's interests or of the employee's job duties and obligations, or of negligence so gross or repeated as to demonstrate equivalent culpability. Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249 (1941). Where an employee has been discharged for excessive absenteeism, misconduct will not be found if the employee's absences are for valid reasons and are promptly reported to the employer. See, e.g., Hohl v. Koffee Kup, UI Dec. Hearing No. 02007525MD (LIRC Apr. 25, 2003). On the other hand, chronic tardiness after warnings may demonstrate an intentional disregard of the employer's interests and of the standards of conduct that the employer has a right to expect of an employee and support a finding of misconduct. See, e.g., Williams v. Gilmore Construction Inc., UI Dec. Hearing No. 99608402WK (LIRC Mar. 30, 2000).

In this case, the primary reason the employee's job was in jeopardy related to missing work on four occasions due to personal illness. Those absences were for a valid reason and with notice. The inquiry then becomes whether the employee's four instances of tardiness totaling 34 minutes during a six-month period constitute misconduct. The commission concludes that they do not. While the employee accumulated points in excess of those allowed under the employer's system, her conduct and overall attendance record did not demonstrate a deliberate and substantial disregard of the employer's interests. See, e.g., Schumacher v. Woodman's Food Market Inc., UI Dec. Hearing No. 10403985AP (LIRC May 13, 2011); Birch v. Nedland Industries Inc., UI Dec. Hearing No. 07200397RL (LIRC, June 1, 2007); Harmon v. Ameritech Services Inc., UI Dec. Hearing No. 02607385MW (LIRC April 8, 2003).

The commission therefore finds that, in week 52 of 2010, the employee was discharged but that the discharge was not for misconduct connected with the employee's 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 52 of 2010, if otherwise qualified.

Dated and Mailed August 26, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


dakema . urr : 152 : 5

NOTE: The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission accepts the administrative law judge's factual findings but disagrees with the legal conclusions reached based on those findings.


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uploaded 2011/09/13