Legal Updates


ABSENTEEISM MAY DISQUALIFY FORMER EMPLOYEES FROM RECEIVING UNEMPLOYMENT INSURANCE BENEFITS

October 8, 2018

The Wisconsin Supreme Court recently issued a decision in which it concluded that terminating an employee for violating an employer’s attendance or absenteeism policy constitutes “misconduct” resulting in disqualification from receiving Unemployment Insurance benefits even if the employer’s policy is more restrictive than the standard set forth in the state statutes.

Wisconsin Department of Workforce Development v. Wisconsin Labor and Industry Review Commission, 382 Wis.2d 611 (Wis. Sup. Ct. June 26, 2018) concerned the unemployment insurance benefits of Valerie Beres (Beres), who was a registered nurse employed by Mequon Jewish Campus (MJC). Beres had signed MJC’s written attendance policy, which provided that an employee may be terminated if, in a single instance, the employee does not give advance notice of an absence. MJC’s policy required an employee to “call in 2 hours ahead of time” if the employee was unable to work his/her shift.

Beres did not come to work due to “flu-like symptoms” and she did not communicate with MJC two (2) hours prior to the beginning of her shift to inform MJC that she was not going to come to work. MJC terminated Beres three (3) days later because of her violation of the absenteeism policy.

Beres filed for Unemployment Insurance benefits, but the Department of Workforce Development (DWD) denied benefits on the grounds that when Beres violated her employer’s written “No Call No Show” attendance policy, she committed “misconduct” pursuant to Wis. Stat. § 108.04(5)(e).

Wis. Stat. § 108.04(5)(e) addresses when absenteeism constitutes “misconduct” disqualifying a terminated employee from obtaining unemployment compensation benefits:

(5) Discharge for misconduct. An employee whose work is terminated by an employing unit for misconduct by the employee . . . is ineligible to receive benefits. . . . “[M]isconduct includes:

. . .

(e) 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, 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 move valid reasons for the absenteeism or tardiness.

Beres appealed the DWD’s decision to the Labor and Industry Review Commission (LIRC). The LIRC reversed the decision of the DWD, concluding that an employee is not disqualified from obtaining Unemployment Insurance benefits when the employee is terminated for violating an employer’s absenteeism policy if that policy is more restrictive then the “2 in 120” day standard provided for in Wis. Stat. § 108.04(5)(e). The LIRC determined that Beres did not commit “misconduct” because although she violated her employer’s “stricter” absenteeism policy, she did not violate the “2 in 120” day statutory standard.

The DWD appealed to Ozaukee County Circuit Court and the Ozaukee County Circuit Court Judge adopted the position of the DWD. The LIRC then appealed to the Wisconsin Court of Appeals and the Court of Appeals adopted the position of the LIRC.

The sole issue presented to the Wisconsin Supreme Court was whether an employer is allowed to adopt an attendance or absentee policy that differs from that set forth in Wis. Stat. § 108.04(5)(e), such that termination of an employee for violating the employer’s policy results in disqualification for Unemployment Insurance benefits even if the employer’s policy is more restrictive on the employee.

The Supreme Court first determined that it did not owe any deference to the LIRC order interpreting and applying Wis. Stat. § 108.04(5)(e). The Supreme Court reasoned that the LIRC acted without or in excess of its powers because it based its order interpreting and applying Wis. Stat. § 108.04(5)(e) on an incorrect interpretation thereof.

Next, in contrast to the LIRC’s interpretation of Wis. Stat. § 108.04(5)(e), the Supreme Court concluded that the text of Wis. Stat. § 108.04(5)(e) plainly allows an employer to adopt its own attendance or absenteeism policy that differs from the policy set forth in Wis. Stat. § 108.04(5)(e) and that termination for the violation of the employer’s policy will result in disqualification from receiving Unemployment Insurance benefits even if the employer’s policy is more restrictive than the “2 in 120” standard set forth in the statutes.

According to the Supreme Court, MJC had an attendance (absenteeism) policy specified in its employment manual. Beres acknowledged receipt of this policy in the employment manual with her signature. Beres violated MJC’s policy when she failed to provide MJC proper notice of her absence. Under these circumstances, the Supreme Court concluded that Beres engaged in “misconduct” and was properly denied Unemployment Insurance benefits.

This case illustrates that employees may be disqualified from receiving Unemployment Insurance benefits if they are terminated for violating their employer’s attendance or absenteeism policy even if the employer’s policy is more restrictive than the “2 in 120” standard set forth in Wis. Stat. § 108.04(5)(e). The key for employers is to adopt an attendance or absenteeism policy and obtain written acknowledgment of receipt of the attendance or absenteeism policy from their employees.

For questions regarding this article, please contact the author, Attorney Tony J. Renning (email: trenning@strangpatteson.com; telephone: 844.833.0823) or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

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