State of Wisconsin
Labor and Industry
Review Commission
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Khris M. Stangel |
Unemployment
Insurance Decision[1] |
Employee |
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Spancrete Inc. |
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Employer |
Dated and
Mailed: |
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Hearing
No.17402720MW |
July 30, 2018 |
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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: |
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/s/ |
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Georgia E. Maxwell, Chairperson |
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/s/ |
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Laurie R. McCallum, Commissioner |
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/s/______________________________________ David B. Falstad, Commissioner |
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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 ___.
[3] Beres, id.¸ ¶13.
[4] Beres, id., ¶19.