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

JULIA A COULSON, Employee

ONE HOUR MARTINIZING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 13602943MW


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 in customer service and production for the employer, a dry cleaner. She started her employment in April 2007. Her last day of work was March 9, 2013; she was discharged on March 11, 2013.

The employee's regular hours of work were from 7 a.m. to 2 p.m., Monday through Friday. She also worked occasionally on Saturday, from 6 a.m. to noon.

The employee received three warning notices for attendance issues. The first was issued for an absence on Monday, October 15, 2012. The employee had been hospitalized due to a medical emergency over the weekend, and was still in the hospital on Monday, October 15th. Although the employee did not personally notify the employer of her absence, notification was provided on the 15th by the employee's sister, who was also an employee. When the employee arrived for work on October 17, 2012, she was given a written warning because she did not personally notify the employer of her absence. The employer's attendance policy defines "adequate notice" to be the employee's making "personal contact" with the store manager. The employee's absence on this occasion was for a valid reason, and notice of the absence was reasonably given. The employee's absence on this occasion does not contribute to a finding of misconduct.

At some point in November 2012 the employee had a car accident, and for the remaining four months of her employment she was dependent on others for getting rides to and from work. She accrued four incidents of tardiness in November and early December-from 11 minutes late to 24 minutes late. In mid-December, Danielle Bykowski, her supervisor, was about to go on maternity leave, and Reza Griggs was to become her interim supervisor. They both told the employee at that time that if she called in advance to let the employer know what time she was going to arrive for work, it would not matter if she showed up a little late due to her car situation.

From mid-December 2012 through February 7, 2013, the employee accumulated 10 more incidents of tardiness, ranging from 7 minutes late to 58 minutes late. Generally, these incidents were due to the employee's difficulties finding a ride to work, but on February 7th oversleeping was the reason for her tardiness of 58 minutes. Griggs told the employee on February 7th that she had to start issuing warnings to the employee for being late, even if she did call in ahead of time, and she gave the employee a warning notice on which she wrote that although the employee had called in, she had a habit of coming in late. The employee agreed with the employer's statement on the warning notice, and added her own statement admitting that she was in the wrong, referring to the fact that she had overslept on February 7th.

The employee was tardy four to six more times(1) from February 8th through February 28th, ranging from 14 minutes late to 73 minutes late on February 28th. Griggs gave the employee another written warning notice after the tardiness on February 28th. At the bottom, in a space labeled "consequences should incident occur again", Griggs wrote: "Be let go if continues." Griggs also told the employee that if she were tardy again she would be discharged. The employee was aware at this point that her job was in jeopardy.

The next morning, March 1, 2013, the employee arrived at work at 7:55 a.m. She gave conflicting testimony as to whether this was an incident of tardiness. At one point she testified that she was "pretty sure" she was told by her supervisor to come in late because business was slow. She testified that during the slow season she was told to come in later than 7 a.m. once or twice per week. Later in her testimony, however, the employee said she knew "for sure" that on March 1 she had overslept. The commission, therefore, does not credit the employee's testimony that she was pretty sure she was told to come in late on March 1st. On March 5, 2013 the employee arrived at work at 7:25 a.m. She did not contend that she was permitted to arrive late that day. She did not remember why she was late on March 5th, but stated that it was probably because she was dependent on a ride to work.

Griggs, along with the owner, Brian Cass, decided on March 5, 2013 to discharge the employee. The employer, however, did not tell the employee she was discharged until Monday, March 11, 2013. The employee, therefore, worked her regular hours through Friday, March 9th. She had no further attendance issues after the tardiness of March 5th. The reason the employer did not discharge the employee on March 5th was that the store was short-staffed due to Bykowski's still being on maternity leave. Bykowski returned to work on March 12th.

The ALJ reasoned that since the employee's conduct was not egregious enough to cause the employer to immediately discharge her on March 5th, it cannot be considered misconduct under the unemployment insurance law. The commission does not agree. This is not a situation in which the employer condoned the employee's conduct, leading her to believe that her conduct would not result in her discharge. The employee had been given a final warning on February 28th, and knew her job was in jeopardy. The employee did not indicate that she thought she was "off the hook" regarding her tardiness of March 5th because she was not immediately discharged. Compare, Dykstra v. Sulzer Machine & Mfg, Inc., UI Dec. Hearing No. 06201124RH (LIRC Oct. 6, 2006) (employee not put on clear notice how many absences would be tolerated; the commission was unable to conclude that the employee's attendance, poor as it was, constituted a deliberate disregard for the employer's interests).

Nor was this a case in which the delay following the final incident was of such a length of time as to undermine an employer's claim that the conduct was bad enough to be misconduct Compare, Collins v. Milwaukee Public Schools, UI Dec. Hearing No. 06601902MW (LIRC Aug. 23, 2006) (employee was allowed to continue in employment for eight weeks after an incident which the employer labeled as egregious-employer failed to show that the conduct demonstrated a willful and substantial disregard for the employer's interests).

This situation is closer to the case identified by the employer in briefing, McWashington v. County of Racine, UI Dec. Hearing No. 08604336RC (LIRC Oct. 31, 2008). In McWashington, the employee had a string of absences and tardiness for about three weeks following her final warning. The delay in discharging the employee was due to the employer's practice of having its attendance decisions reviewed by a committee, and its practice of waiting for 15 days after an attendance incident to take action, in order to allow for the possibility that the employee would apply for family or medical leave for the absence. The commission held that the employer's explanation for the delay was reasonable, and therefore it did not draw an inference that the employer's expressed concern about the employee's attendance problem was overstated. Similarly, here, the employer made a business decision to briefly delay the employee's discharge in order to keep the store adequately staffed for the balance of the week, until Bykowski returned. Since the store required only about four people to be adequately staffed, the loss of one employee had a significant impact. The fact that the employer had a business reason for keeping the employee a few more days does not in this case detract from its argument that the employee's failure to get to work on time was misconduct.

The commission, then, turns to the question of whether the employee's record of tardiness should be considered misconduct. An employee's continued tardiness, without valid reason, following warnings from the employer sufficient to put the employee on notice that her job was in jeopardy, has been found to be misconduct. Uebe v. Merchants Delivery Moving & Storage Co., UI Dec. Hearing No. 12610820MW (LIRC May 9, 2013); Gomez v. Aurora Pharmacy, Inc., UI Dec. Hearing No. 08601281MW (LIRC June 26, 2008).

Most of the employee's incidents of tardiness were the result of the employee's dependence on others for rides to work. Commission decisions have recognized isolated transportation problems as valid reasons for an absence or tardiness. Reader v. Trek Bicycle Corporation, UI Dec. Hearing No. 89-604160WT (LIRC Nov. 18, 1989). At some point, though, continuing transportation problems are no longer valid reasons for non-attendance. In McMorris v. Deluxe Media Services, LLC, UI Dec. Hearing No. 06600579RC (LIRC April 21, 2006), for instance, the employee's failure to correct her transportation issue over the course of a week was problematic ("...even though [the employee] had been aware for at least a week that her car was inoperable due to her accident, she did not make transportation arrangements during this period of time to enable her to report to work..."). In Thaler v. Kettle Moraine Exteriors, Inc., UI Dec. Hearing No. 03605761WB (LIRC Feb. 11, 2004), the employee's car problems extended to several days in two separate weeks in one month, and the commission found those instances to be more than isolated. In Rincon v. Bank One Wisconsin, UI Dec. Hearing No. 01607055MW (LIRC March 12, 2002), the employee's tardiness due to car problems lasted from spring 2000 to December 2000, and totaled about 10 incidents. That was followed by about 10 more incidents in the spring of 2001 due to road construction. The commission stated: "Generally, the commission considers occasional transportation problems or unavoidable delays due to traffic or construction to constitute valid reasons for being tardy. However, at some point repeated ongoing tardiness for the same reason must be considered avoidable."

In this case, the employee's transportation problems were not isolated; they continued for four months. The employee provided little explanation about what prevented her from arriving at a lasting solution to this problem. By the time of the employer's February 7th warning, the employee's continued tardiness had become avoidable, and her continued tardiness due to having unreliable transportation was no longer for a valid reason. In addition, her tardiness on March 1st for oversleeping was not for a valid reason. Uebe v. Merchants Delivery Moving & Storage Co., UI Dec. Hearing No. 12610820MW (LIRC May 9, 2013). The employee failed to show she was making a conscientious effort to get to work on time, especially as the instances continued after she was warned. The commission therefore finds that the employee was discharged for a record of tardiness that showed disregard of standards which the employer had a right to expect of its employee, and constituted misconduct under Wis. Stat. § 108.04(5).

The commission further finds that the employee was paid benefits in the amount of $205 per week for each of weeks 12 through 34 of 2013, amounting to a total of $4,715, for which she was not eligible and to which she was not entitled, within the meaning of Wis. Stat. § 108.03 (1), and pursuant to Wis. Stat. § 108.22 (8)(a), she is required to repay such sum to the Unemployment Reserve Fund.

The commission further finds that waiver of benefit recovery is not required under Wis. Stat. § 108.22 (8)(c), because although the overpayment did not result from the fault of the employee as provided in Wis. Stat. § 108.04 (13)(f), the overpayment was not the result of a department error. Wis. Stat. § 108.22 (8)(c)2.

DECISION


The decision of the administrative law judge is reversed. Accordingly, the employee is ineligible for benefits beginning in week 11 of 2013, and until seven weeks have elapsed since the end of the week of discharge and she has earned wages in covered employment performed after the week of discharge equaling at least 14 times her weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $4,715 to the Unemployment Reserve Fund.

Dated and mailed September 5, 2013

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: For purposes of computing benefit entitlement: Base period wages from work for the employer prior to the discharge shall be excluded from any computation of maximum benefit amount for this or any later claim. If the employee was also paid base period wages from work by other covered employers, the excluded wages shall be used to determine benefit eligibility. However, any benefits otherwise chargeable to a contribution employer's account shall be charged to the fund's balancing account.

Repayment instructions will be mailed after this decision becomes final. The department will withhold benefits due for future weeks of unemployment in order to offset overpayment of U.I. and other special benefit programs that are due to this state, another state or to the federal government.

Contact the Unemployment Insurance Division, Collections Unit, P. O. Box 7888, Madison, WI 53707, to establish an agreement to repay the overpayment.

The commission did not conduct a credibility conference with the administrative law judge before reversing his decision, because the commission's reversal is based on a different interpretation of the applicable law, not on a different view of the facts.


coulsju_urr . doc : 107 :

cc: LINDNER & MARSACK
ATTN: DANIEL FINERTY

 


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Footnotes:

(1)( Back ) For two of the six occasions in this time frame, the employee testified that her supervisor gave her permission to come to work later than 7 a.m. because it was the slow season.