March/April 2017 Issue

Also in this issue: Recreational Immunity Applied When Grandparent Injured While Supervising Grandchildren at City-Owned Pool     |     Court of Appeals Upholds Oshkosh Special Events Ordinance     |     Wisconsin Supreme Court Rules That The Public Can Carry Concealed Weapons On Public Transportation

Employer Attendance Policies and Unemployment Compensation

Brian P. Goodman | 02.28.17

An employee who is terminated for ​“misconduct” has reduced eligibility for unemployment benefits. Whether an employee engaged in ​“misconduct” was previously addressed solely under a broad standard which defined misconduct to include employee conduct such as ​“deliberate violations of standards of behavior, carelessness that manifests wrongful intent, and substantial disregard of the employer’s interests.” Wis. Stat. § 108.04(5). This standard is generally considered employee-friendly. In 2013, the legislature adopted Wis. Stat. § 108.04(5)(e) (“the amended statute”) which provides an additional statutory definition of ​“misconduct” for unemployment compensation purposes for different types of conduct, including absenteeism. This standard is more employer-friendly. For example, with respect to absenteeism, the amended statute defines misconduct as follows:

“Absenteeism by an employee on more than 2 occasions within the 120-day period before the date of the employee’s termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature” (emphasis added) 

A recent Wisconsin Court of Appeals interpreted this provision with respect to an employee’s eligibility for unemployment compensation when an employee is terminated for absenteeism. DWD v. LIRC, No. 2016AP1365 (Wis. Ct. App. Mar. 8, 2017). 

In this case, Valarie Beres was employed as a probationary employee by the Mequon Jewish Campus (MJC) as a registered nurse. She signed a written attendance policy which stated that probationary employees could be terminated for a single instance of a ​“no call, no show.” Beres was ill one day and did not call in before her shift. MJC terminated Beres pursuant to its policy. The Department of Workforce Development (DWD) denied Beres’ unemployment compensation claim for benefits. DWD interpreted the statute to allow employers to adopt an attendance policy which establishes a stricter standard than ​“2 absences in 120 days” and that an employee terminated for violating the stricter policy would be considered to have engaged in ​“misconduct” under the statute for unemployment compensation purposes. 

Beres appealed that decision to LIRC which reversed DWD’s determination. LIRC applied a three-part test. First, it determined that Beres was terminated pursuant to an employer attendance policy that was stricter than the statute. LIRC concluded that an employer could not prevail under the statute if the employer adopted and enforced an absenteeism standard stricter than outlined in the statue. Therefore, LIRC determined that Beres was not terminated for ​“misconduct” due to absenteeism as defined in the statute. 

Second, LIRC determined that Beres was not terminated for ​“misconduct” under the broader statutory provision since Beres’ absence was an isolated incident of ordinary negligence due to her illness and did not constitute ​“misconduct” under the broader statutory provision. 

Third, LIRC determined that Beres was not terminated for ​“substantial fault” because she did not have reasonable control over her absence because she was ill. Therefore, Beres qualified for unemployment compensation. 

This decision was appealed to the Wisconsin Court of Appeals which held that LIRC’s interpretation of the statute was reasonable. The court held that while the statute allows an employer to establish an attendance policy that is more generous to employees, the violation of which would constitute ​“misconduct,” the statute could not be reasonably interpreted to allow an employer to apply a stricter standard in order to establish ​“misconduct” for unemployment insurance benefits (although such a policy would provide a basis for termination). If the employer adopts a stricter standard, the determination of whether an employee has engaged in ​“misconduct” will be reviewed instead under the broader, employee-friendly standard. 

DWD can appeal the case to the Wisconsin Supreme Court. Of note, however, is that Governor Walker’s proposed 2017 – 19 budget seeks to eliminate the LIRC, whose interpretation was adopted by the Court of Appeals and was at odds with DWD’s Unemployment Insurance Division Administrator. The proposed budget provides that all unemployment appeals would be handled by the UI Division Administrator. 

Regardless of the budget proposal, the Court of Appeals has made it clear that while employers may establish an attendance policy that is stricter than “ 2 absences in 120 days,” an employee terminated under this stricter standard will not fall within the new statutory definition of ​“misconduct,” but may be considered to have engaged in ​“misconduct” if the conduct meets the broader definition of ​“misconduct” or if the employee’s absences constitute ​“substantial fault.” 

— Brian P. Goodman