STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

ELLETTRA L WEBSTER, Employee

COUNTY OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 12603521MW


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 four years as a correctional officer for the employer, a county government. The employee typically worked on the second shift. The employee was tardy twice by less than six minutes during a six-month time period. Both instances of tardiness were due to traffic delays. After her first tardy in April 2011, the employee was suspended for seven days. The second tardy occurred on October 6, 2011.

Following an investigation by internal affairs, the sheriff recommended that the employee be discharged for failing to follow the employer's rules, regulations, polices and procedures on October 6, 2011. The employee was notified on November 17, 2011 (week 47), that she was suspended without pay until the employer's Personnel Review Board (PRB) conducted a hearing on the charges filed by the sheriff against the employee and made a disciplinary decision. The employee made an initial appearance before the PRB on November 29, 2011, and waived her right to have a hearing within 21 days. The employee's hearing before the PRB was set for July 10, 2012.

The employee initiated a claim for unemployment benefits on November 28, 2011 (week 48). She received benefits for weeks 48 of 2011 through 28 of 2012. The employer contested the employee's receipt of benefits.

Wisconsin Stat. § 108.04(6) provides in relevant part:

DISCIPLINARY SUSPENSION. An employee whose work is suspended by an employing unit for good cause connected with the employee's work is ineligible to receive benefits until 3 weeks have elapsed since the end of the week in which the suspension occurs or until the suspension is terminated, whichever occurs first.

In Messenger v. Fort James Operating Company, UI Dec. Hearing No. 99400520GB (LIRC Aug. 13, 1999), the commission concluded, following a detailed statutory analysis, that only suspensions that are disciplinary fall within the purview of Wis. Stat. § 108.04(6). Specifically, in Messenger, the commission found that a "proactive" suspension, i.e., one designed to protect the employer from potential harm by the employee, was not a suspension within Wis. Stat. § 108.04(6). Similarly, the commission has found that suspensions for investigations are not disciplinary suspensions. Archie v. Aurora Health Care Metro Inc., UI Dec. Hearing No. 06607814MW (LIRC May 31, 2007); Brown v. Jewel Food Store, UI Dec. Hearing No. 98605057MW (LIRC Oct. 20, 1998). Suspensions that are imposed for business reasons or for the convenience of the employer, rather than for punishment or discipline, have also been found not to be disciplinary suspensions for good cause connected with an employee's work. Tober v. Reinhart Retail Group No. 1 Inc., UI Dec. Hearing No. 03202471MW (LIRC July 16, 2004). Employees who are off work during periods of non-disciplinary suspensions, or suspensions that are not for good cause connected with the employee's work, are entitled to unemployment benefits.

The issue to be decided is whether, beginning in week 47 of 2011, the employee's employment was suspended for good cause connected with her work.

In this case, the employee was, pursuant to the employer's civil service rules, suspended pending discharge. There was no discussion or paperwork given to the employee suggesting that the suspension she began on November 17, 2011, was punishment or discipline. Instead, the paperwork clearly stated that the level of discipline the employer was pursuing was discharge. But for the employer's civil service rules, the employee would have been discharged on November 17, 2011. She was suspended pending a review of the matter by an administrative body. A suspension for that reason does not fall within the purview of Wis. Stat. § 108.04(6). See, e.g., Widlake v. Crown Cork & Seal USA Inc., UI Dec. Hearing No. 04402674OS (LIRC Nov. 20, 2004)(employee's suspension pending termination was not disciplinary but more in the nature of a proactive or investigative suspension).

The commission therefore finds that in week 47 of 2011 the employee's work was suspended by the employer but not as a disciplinary suspension for good cause connected with her work, within the meaning of Wis. Stat. § 108.04(6)(a).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed November 8, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The employer petitioned for commission review of the appeal tribunal decision awarding benefits to the employee while suspended pending her due process hearing before the employer's PRB. The employer argues that the employee's suspension falls squarely within the language of the Wis. Stat. § 108.04(6), because the employee was suspended for good cause connected with her work (tardiness). The employer argues that the term "disciplinary" is not part of the wording of the statute itself but is only part of the title of the statutory subsection. The employer also argues, in the alternative, that the employee's suspension without pay pending discharge was, under both the common definition and the technical definition, disciplinary.

As the commission discussed in Messenger v. Fort James Operating Company, supra, prior to 1987 the language in Wis. Stat. § 108.04(6) specifically referred to a "disciplinary" suspension. At that time, as is the case now, the title of the statutory section was "Disciplinary Suspensions." The section was repealed and recreated by 1987 Wisconsin Act 38, but the title of the section was left intact. The re-creation spoke only of "suspension" for misconduct or other good cause. Because, as the employer points out, the title of a statutory section is not part of the statutes but, rather, is prepared by the Revisor of Statutes for indexing purposes, the commission considered the legal question of whether the legislature intended to broaden what constitutes good cause for a suspension under Wis. Stat. § 108.04(6) when it rewrote that section. The commission concluded that, because there was no reference to changing the scope of the statute or to making a substantive change in the provision, the legislature did not intend to broaden the purview of Wis. Stat. § 108.04(6). Thus, only suspensions that are disciplinary fall within the meaning of the statute.

The Wisconsin Supreme Court considered in Nottelson v. ILHR Department, 94 Wis. 2d 106, 118-119, 287 N.W.2d 763 (1980), a similar argument as it relates to voluntary terminations of employment. Although the word "voluntary" appears only in the caption to Wis. Stat. § 108.04(7)(a), the court stated that Wis. Stat. § 108.04(7)(a) must be read as if the word "voluntary" is part of the body of the section. "[I]t is initially arguable that the statute does not even require that the employment be 'voluntarily' terminated, but only that it be terminated by the employee. Since, however, the use of the word in the title to the statute must be viewed as at least manifesting legislative intent as to its meaning, and since also we have so construed it on prior occasions, we continue to do so here." (Internal citations omitted.]

In this case, while suspending an employee without pay pending a formal discharge hearing is part of the employer's disciplinary process, the suspension itself is not the discipline. The purpose of the suspension was not to punish the employee but to separate the employee from her work duties until an administrative body could evaluate the sheriff's disciplinary recommendation. The employee's discharge is the discipline sought to be imposed for the employee's conduct.

Furthermore, if the employer chooses to impose a disciplinary suspension for certain conduct, the employer may not use that same conduct as a basis upon which to discharge the employee for misconduct connected with the employee's employment. The commission has consistently held that, once a disciplinary suspension has been imposed and served, there must be further culpable conduct on the employee's part to sustain a finding of misconduct connected with a subsequent discharge; i.e., the same incident may not serve as the basis for a disciplinary action and a subsequent discharge. See, e.g., Clayton v. Banta Corporation, UI Dec. Hearing No. 06402960AP (LIRC March 21, 2007); Hollenberger v. WPS Insurance Corp., UI Dec. Hearing No. 06002829MD (LIRC Nov. 30, 2006); Jackson v. Ultra Mart Foods, Inc., UI Dec. Hearing No. 03000827NW (LIRC Dec. 4, 2003); Bebo v. Schindler Elevator Corp., UI Dec. Hearing No. 02609535MW (LIRC April 11, 2003).

 

NOTE: The commission had no disagreement with the material findings of fact made by the administrative law judge. It issued its own decision in this matter in order to set forth more fully the rationale on the basis of which it agreed with the result reached by the administrative law judge.


webstel . urr : 152 : 2

cc:
Attorney Craig R. Johnson
Colleen A. Foley

 

 


Appealed to Circuit Court.  Affirmed, June 4, 2013.  [Summary of Circuit Court decision]   Appealed to the Court of Appeals.  Reversed, Milwaukee Co. v. LIRC, Carrington-Field, and Webster, 2014 WI App 55, 354 Wis. 2d 162, 847 N.W.2d 874.

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