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Wisconsin Department of Workforce Development v. Wisconsin Labor and Industry Review Commission

Supreme Court of Wisconsin

June 26, 2018

Wisconsin Department of Workforce Development, Plaintiff-Respondent-Petitioner,
v.
Wisconsin Labor and Industry Review Commission, Defendant-Appellant, Valarie Beres and Mequon Jewish Campus, Inc., Defendants.

          Submitted on Briefs: Oral Argument: December 1, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 375 Wis.2d 183, 895 N.W.2d 77');">895 N.W.2d 77

          Circuit Court Ozaukee County (L.C. No. 2015CV358) Sandy A. Williams Judge

          For the plaintiff-respondent-petitioner, there were briefs filed by Ryan J. Walsh, chief deputy solicitor general, Brad D. Schimel, attorney general, Misha Tseytlin, solicitor general, and Kevin M. LeRoy, deputy solicitor general. There was an oral argument by Ryan Walsh.

          For the defendant-appellant, there was a brief filed by Jeffrey J. Shampo and Wisconsin Labor and Industry Review Commission, Madison. There was an oral argument by Jeffrey J. Shampo.

          There was an amicus curiae brief filed on behalf of Wisconsin Institute for Law & Liberty, Inc. by Thomas C. Kamenick, Richard M. Esenberg, and Wisconsin Institute for Law & Liberty, Inc., Milwaukee.

          SHIRLEY S. ABRAHAMSON, J.

         ¶1 Valerie Beres was denied unemployment compensation benefits on the ground that she was terminated for engaging in "misconduct" as an employee, namely absenteeism, as defined by Wis.Stat. § 108.04(5)(e) (2015-16).[1] The statute sets forth the circumstances in which absenteeism will constitute "misconduct" barring unemployment compensation benefits.

         ¶2 The Ozaukee County Circuit Court, Sandy A. Williams, Judge, adopted the position of the Department of Workforce Development that the plain language of Wis.Stat. § 108.04(5)(e) allows an employer to adopt its own rules regarding employee absenteeism; that the employer's absenteeism rules need not be consistent with the statute's definition of "misconduct" based on absenteeism; and that an employee's violation of the employer's absenteeism rules constitutes "misconduct" under § 108.04(5) (e) barring unemployment compensation benefits.[2]

         ¶3 In contrast, the court of appeals concluded that an employee who is terminated for violating an employer's absenteeism rules is not barred from obtaining unemployment compensation benefits unless the employee's conduct violates the statutory definition of "misconduct" based on absenteeism.[3] The court of appeals also concluded that an employee cannot be denied unemployment compensation benefits for violating an employer's absenteeism policy that is "stricter" than the absenteeism policy set forth in the statute.

         ¶4 The single issue presented to the court is as follows: Does Wis.Stat. § 108.04(5) (e) allow an employer to adopt an attendance or absenteeism policy that differs from that set forth in § 108.04(5)(e) such that termination of an employee for violating the employer's policy results in disqualification for unemployment compensation benefits even if the employer's policy is more restrictive on the employee?[4]

         ¶5 We conclude that the plain language of Wis.Stat. § 108.04(5)(e) allows an employer to adopt its own absenteeism policy that differs from the policy set forth in § 108.04(5) (e), and that termination for the violation of the employer's absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employer's policy is more restrictive than the absenteeism policy set forth in the statute. Beres was terminated for not complying with her employer's absenteeism policy. Accordingly, we conclude that Beres was properly denied benefits. I

         ¶6 For purposes of deciding the issue presented, the facts are brief and undisputed. Valerie Beres, a registered nurse, was employed by Mequon Jewish Campus. Beres had signed her employer's written attendance policy providing that an employee in his or her probationary period may have his or her employment terminated if, in a single instance, the employee does not give the employer advance notice of an absence. The employer's policy was that an employee must "call in 2 hours ahead of time" if the employee was unable to work his or her shift.

         ¶7 In the instant case, Beres was in her 90-day probationary period when she did not come to work due to "flu-like symptoms." She did not communicate with her employer two hours prior to the beginning of her shift to inform her employer that she was sick and that she was unable to work her shift. Beres's employer terminated her employment three days later because of her violation of the employer's absenteeism policy.

         ¶8 Beres filed for unemployment compensation benefits. The Department of Workforce Development (DWD) denied benefits on the ground that when Beres violated her employer's written "No Call No Show" attendance policy, she committed "misconduct" under Wis.Stat. § 108.04(5)(e). This statutory provision addresses when absenteeism constitutes "misconduct" ...


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