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

AMANDA K STAIDUHAR, Employee

PIGGLY WIGGLY NO 254, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11002011MD


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 three years in a stocking position for the employer, a grocery store. She was discharged on March 27, 2011 (week 14), for violating the employer's hair guidelines.

The employee was hired by the employer in March of 2008. On June 29, 2009, the employee acknowledged receiving an employee handbook. The portion of the employee handbook at issue here provides:

- Personal appearance and cleanliness -
Personal appearance and cleanliness are very important in this food retailing business. A well-groomed employee immediately makes a good impression both for the store and for the employee. Clothing should be stain and wrinkle free.
A customer's perception of the store is often based on the appearance of the employees. A professional look is required of employees, a sharper business-like image.

- Hair Guidelines -
Hair is to be clean, neat, well trimmed and of suitable length. Extreme styles---Example: Mohawks and partially shaven heads are unacceptable.
If the hair is artificially colored, then it must be of a color which is natural looking nothing extreme; No multi colored highlights-such as purple, black or burgundy. Absolutely no unnatural hair color (for example: red, pink, green, blue, purple, etc.) either temporary or permanent is permitted. Whether it is an acceptable color combination is at management discretion.
See Guidelines ****** (page 28)(1)

On March 16, 2011, the employee reported to work with red streaks dyed into her hair. The owner informed her that she had to remove the red streaks by March 19 or face termination. On March 19, 2011, the store manager gave the employee until March 26, 2011, to get her hair back to its normal color after the employee told the store manager that her hair was falling out due to trying to dye it again. At the time of discharge the employee stated that her hair would fall out due to dyeing it again so quickly. The employee also indicated that despite trying her hair would not go back to an appropriate color.

The issue to be decided is whether the employer discharged the employee for misconduct connected with her work for the employer. 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 ALJ found that the competent evidence established that the employee was diligent in her efforts to remove the red streaks in her hair and her lack of success was due to circumstances beyond her control. The ALJ was relying on the employee's statements to the employer that she had tried to get the red out. The commission agrees with the ALJ that the employee's statements are "competent evidence." The employee's statement to the employer, offered by the employer at the hearing, constitute an admission by a party opponent and is not hearsay pursuant to Wis. Stat. 908.01(4)(b)1.(2)

However, in this case, the employer was giving the employee the opportunity to comply with its rules. Her inability to change her hair color did not alter the fact that she had red streaks in her hair which was a violation of the employer's policy. The commission concludes based on the employee's statements that she would be dyeing her hair again, that the employee intentionally put the red streaks in her hair.

Wis. Stat. § 103.14 provides, "Each employer shall, at the time of hiring, notify each employee about any hairstyle, facial hair or clothing requirement."

In Tomich v. Wal Mart Stores Inc., UI Dec. Hearing No. 92603834MW (LIRC March 17, 1993), the employer discharged the employee because he was in violation of its policy regarding hair length. The commission allowed benefits stating:

In this case, the Commission notes that when the employe was hired by the employer's predecessor, the named employer's grooming policy was not explained to him or even yet in effect. The fact that the rule was not explained is not merely a minor detail: state law specifically states that each employer must, at the time of hiring, notify employes about any hair style, facial hair or clothing requirement. Section 103.14, Stats. Although the law does not provide a penalty for failing to provide that information to a worker, it does express a legislative preference that employes be aware of grooming requirements going into an employment relationship. While employers have legitimate interests in grooming requirements, the Commission cannot conclude that this employe's failure to comply with the new or changed grooming requirement was misconduct as defined above.

The employer did not establish that it informed the employee of its hairstyle requirements at the time of hire.

The next question is whether the employee's actions in dying her hair red, in violation of the employer's policy, demonstrated a substantial disregard of standards of behavior the employer had a right to expect of the employee or the employee's duties and obligations to the employer.

The seminal grooming case is Consolidated Const. Co. v. Casey, 71 Wis.2d 811 (1976). Casey lost his job for refusing to trim his hair and cut his beard. The employer cited safety as the reason for its hair restrictions. The employee demonstrated alternatives that addressed the employer's safety concerns as it related to the length of his hair. The Court stated that since alternative means of protection were available the employer's hair length requirements were not "reasonable" within the meaning of Gregory v. Anderson, because there was no showing that the employer's business interests would be harmed if the alternative methods of protection used. The court stated that "since Consolidated's grooming code was not necessary for safety in the form in which promulgated, refusal to comply with it could not constitute statutory misconduct. Consolidated, at 817. As to the beard, the matter was remanded to the commission to determine if the beard was a safety hazard.(3)

The court in Consolidated emphasized 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." Consolidated at 819.

In Gossen v. American Spring/Brake, Inc., UI Dec. Hearing No. 90402017AP (LIRC May 1, 1991), the employer's policy regulated facial hair and hair length on males. The policy stated that the purpose of the appearance code was to create a spirit and impression of a professional and organized staff. The employee was a warehouse worker who rarely saw customers. At the hearing, the employer's witness testified that the reason for the policy was that "it is just our policy." The commission noted that there had been no customer complaints about the employee's hair and there were no safety concerns. In finding no misconduct, the commission reasoned that the employer "failed to justify its rule as reasons of safety or business necessity. As the employer has not established reasonableness for its requirement that a warehouse laborer's hair be cut at or above the collar and that a part of the worker's ear be visible, the employee's actions are not misconduct."

In Herr v. McEssy Investment Co., UI Dec. Hearing No. 10602407MW (LIRC Aug. 27, 2010), the employee worked as a crew member for a fast food restaurant. The employer had strict rules relating to hygiene. One rule required males to be clean shaven, except for a well-trimmed mustache. The employee had been warned on several occasions for not being clean shaven and discharged him for reporting to worn unshaven. The commission found that:

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 personal appearance and cleanliness portion of the employer's policy is separate from the hair guidelines portion of the policy. The hair guidelines portion does not specifically indicate the reason beyond the policy. The employer did not testify regarding the reason for the hair guidelines. The commission cannot conclude on this record that the employee's actions in putting red streaks in her hair demonstrated a "substantial" disregard of the employer's interests. Again, as stated by the court in Consolidated:

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 commission affirms the appeal tribunal decision because the employer did not establish that the employee was notified of the policy at the time of hire, the employer did not offer a reason for the policy, and the employer did not establish that a violation of its policy was a "substantial" disregard of its interests.

The commission therefore finds that, in week 14 of 2011, 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, as modified, is affirmed. Accordingly, the employee is eligible for benefits beginning in week 14 of 2011, if otherwise qualified.

Dated and mailed January 11, 2012
staidam . umd : 132 : 1

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


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Footnotes:

(1)( Back ) The guidelines referred to are not part of any exhibit.

(2)( Back ) Under Wis. Stat. 908.01(4)(b)1., such statements are admissible against a party whether or not they are "against interest." State v. Benoit, 83 Wis.2d 389, 402 (1978).

(3)( Back ) On remand the commission found that it was not and allowed benefits.