Wisconsin Department of Workforce Development, Plaintiff-Respondent-Petitioner,
Wisconsin Labor and Industry Review Commission, Defendant-Appellant, Valarie Beres and Mequon Jewish Campus, Inc., Defendants.
Submitted on Briefs: Oral Argument: December 1, 2017
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.
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.
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.
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.
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). The statute sets forth the circumstances
in which absenteeism will constitute "misconduct"
barring unemployment compensation benefits.
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.
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. 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.
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
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
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.
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.
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" ...