Wis.LIRC UC Decision: Stangel, Khris M. - July 30, 2018 - Employee exceeded number of absences allowed under employer's attendance policy, and absences were for reasons not excused under the policy. Discharge was for misconduct pursuant to Wis. Stat. § 108.04(5)(e). Statute allows an employer to substitute its own absenteeism standard for the statutory one (more than two absences in 120-day period before date of termination, if not both notice and valid reason for absences). For absenteeism pursuant to employer's policy, “notice” and “valid reason” are as defined in policy, because it would make no sense for statute to allow employer to adopt its own absenteeism policy but not allow employer to define contours of that policy.

State of Wisconsin

Labor and Industry Review Commission


Khris M. Stangel	Unemployment Insurance Decision[1]
Employee

Spancrete Inc.
Employer	Dated and Mailed:

Hearing No.17402720MW	July 30, 2018
Hearing No.17402720MW

The commission modifies and affirms the appeal tribunal decision. Accordingly, the employee is ineligible for benefits beginning in week 37 of 2017, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

By the Commission:

	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner

	/s/______________________________________ David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the employee's eligibility for unemployment insurance benefits. An appeal tribunal of the Unemployment Insurance Division of the Department of Workforce Development held a hearing and issued a decision holding that the employee had been discharged for misconduct, and the employee filed a timely petition for commission review. The commission has considered the petition and the positions of the parties, and it has independently reviewed the evidence submitted at the hearing. Based on its review, the commission makes the following:

Findings of Fact and Conclusions of Law

1. The employee worked approximately nine months as a general laborer for the employer, a concrete construction manufacturing concern. The employee's last day of work was September 13, 2017 (week 37). He was discharged the same day for exceeding the number of absences allowed under the employer's attendance policy.

2. Pursuant to the employer's attendance policy, a point is assessed for each day of absence that is not for a reason excused by the policy. Upon the accumulation of two points in a twelve-month period, an employee will receive a first written warning; upon four points, a second written warning; and upon six points, a final written warning. Accumulation of eight points in a twelve-month period will result in termination.

3. Absences in the following circumstances are excused, that is, will not result in the assessment of a point: the first four doctor-excused absences in a rolling 12-month period; pre-approved vacation, unpaid time off, or holidays; jury duty or military leave; funeral leave for immediate family members; absences caused by work-related illness or injury when substantiated by written doctor's information for the specific period of time; union business; suspension; approved personal leave of absence; certified illness, injury, or family care as provided by the federal or state Family Medical Leave Act; lack of work, breakdown, or temporary layoff; mandatory court appearance as required by subpoena or related document, including probation order, traffic court, or court appearance for a dependent; or extenuating circumstances excused by Senior Management or the Human Resources Department.

4. The employee was absent on January 13 and February 20, 2017, for reasons not excused under the employer's attendance policy. The employee accumulated a point for each absence, resulting in a written warning on February 21, 2017.

5. The employee was absent on March 6 and 13, for reasons not excused under the employer's attendance policy. The employee accumulated a point for each absence, resulting in a second written warning on March 20, 2017.

6. The employee was absent on April 4 and May 3, for reasons not excused under the employer's attendance policy. The employee accumulated a point for each absence, resulting in a final written warning on May 4, 2017. Each of the three warnings the employee received indicated that an employee cannot accumulate eight attendance points in a twelve-month period and that further occurrences may result in further disciplinary action, up to and including termination.

7. The employee again was absent for reasons not excused under the employer's attendance policy, on June 19 and September 11, 2017. He therefore reached eight points pursuant to the policy, and was discharged therefor.

8. The employee's discharge was for misconduct connected with his work, within the meaning of Wis. Stat. § 108.04(5)(e).

Memorandum Opinion

The employee worked approximately nine months as a laborer for the employer, a concrete construction concern. The employer discharged the employee after the employee's eighth absence in an eight-month period, and the issue is whether the discharge is disqualifying for unemployment benefit purposes. The appeal tribunal concluded that the employee's attendance failures amounted to misconduct pursuant to Wis. Stat. § 108.04(5)(intro.). The commission has modified the appeal tribunal decision because it has concluded that the case is properly resolved under Wis. Stat. § 108.04(5)(e).

Wisconsin Stat. § 108.04(5)(e) provides that misconduct for unemployment benefit purposes includes:

Absenteeism by an employee on more than 2 occasions within the 120−day period before the date of the employee's termination [statutory standard], unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature, or excessive tardiness by an employee in violation of a policy of the employer that has been communicated to the employee, if the employee does not provide to his or her employer both notice and one or more valid reasons for the absenteeism or tardiness.

The Wisconsin Supreme Court recently addressed the meaning of this provision, specifically whether it allows an employer to adopt an attendance or absenteeism policy that differs from the statutory standard, such that termination of an employee for violating the employer's policy results in disqualification for unemployment benefits even if the employer's policy is more restrictive than the statutory standard.[2] The court concluded that the text of the statute plainly allows an employer to adopt its own attendance (or absenteeism) policy that differs from the statutory standard, and termination for violation of the policy will result in disqualification, even if the employer's policy is more restrictive than the statutory standard.[3] An employer “can opt out of the statutory definition of ‘misconduct' by absenteeism and set its own absenteeism policy, the violation of which will constitute statutory ‘misconduct'.”[4]

The ALJ declined to apply Wis. Stat. § 108.04(5)(e) because “[a]ll occasions of absence in this case were with notice to the employer and some were for a valid medical reason.” It appears that the ALJ applied traditional, common-law notions of “notice” and “valid reason” to the employer's policy. However, it makes no sense to allow the employer to adopt its own attendance policy different from the policy set forth in the statute, as described in Beres, but then limit its ability to define the contours of that policy. As an example, it is common for employers to adopt “no-fault” attendance policies, allocating to employees a large number of occurrences intended to cover both traditionally excused absences (e.g., sick days) and unexcused absences. It would greatly undermine the logic of such policies to hold the employer and employee accountable for the number of absences defined in the policy but to then consider only the “unexcused” absences when analyzing the employee's termination for absenteeism. Thus, when applying the misconduct standard of Wis. Stat. § 108.04(5)(e), any notice and valid reason limitations will be as defined under the employer's policy, and so long as the termination comports with the terms of that policy the employee's violation of the policy will constitute misconduct pursuant to Wis. Stat. § 108.04(5)(e).

In the present case, the employer “opted out” of the statutory standard and set its own attendance policy, and the employee acknowledged receipt of the policy with his signature. The employee was terminated in conformance with that policy. Pursuant to Beres, therefore, the employee's violation of the employer's policy is misconduct pursuant to Wis. Stat. § 108.04(5)(e).

[1] Appeal Rights: See the blue enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint: the Labor and Industry Review Commission, all other parties in the caption of this decision or order (the boxed section above), and the Department of Workforce Development.

Appeal rights and answers to frequently asked questions about appealing an unemployment insurance decision to circuit court are also available on the commission's website http://lirc.wisconsin.gov.

[2] See Dep't of Workforce Dev. v. Labor and Indus. Review Comm'n (Beres and Mequon Jewish Campus, Inc.), 2018 WI 77, ¶4, ___ Wis. 2d ___, ___ N.W.2d ___.