Wednesday, July 26, 2017

Wisconsin Supreme Court Grants Cert in Unemployment Absenteeism Case

My colleague, Victor Forberger of the Wisconsin Unemployment blawg, recently brought to the fore that the Wisconsin Supreme Court has granted cert in a case involving absenteeism under the newer change to the unemployment insurance statute that created stricter standards for employees seeking benefits when they are terminated for absenteeism.  As explained by Attorney Forberger:

At issue in Beres is one of the new misconduct provisions that became effective in January 2014:
(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 more valid reasons for the absenteeism or tardiness.

Wis. Stat. § 108.04(5)(e). In this provision, the number of absences and tardies was greatly reduced from what was originally in Wis. Stat. § 108.04(5g).   Prior to these changes, this absenteeism and tardiness provision in Wis. Stat. § 108.04(5g) allowed for disqualification for 6 or more tardies or 5 or more absences in a 12-month period and had detailed requirements about about employer notice to employees of this disqualification possibility and how employees had to notify the employer of an absence of tardy. During its meetings, the Advisory Council, after rejecting the Department's proposal, had agreed to amend sub-section (5g) in the following manner:
(5g) DISCHARGE FOR FAILURE TO NOTIFY EMPLOYER OF ABSENTEEISM OR TARDINESS. (a) If an employee is discharged for failing to notify his or her employer of absenteeism or tardiness that becomes excessive, and the employer has complied with the requirements of par. (d) with respect to that employee, the employee is ineligible to receive benefits until 6 weeks have elapsed since the end of the week in which the discharge occurs and the employee earns wages after the week in which the discharge occurs equal to at least 6 times the employee's weekly benefit rate under s. 108.05 (1) in employment or other work covered by the unemployment insurance law of any state or the federal government. For purposes of requalification, the employee's weekly benefit rate shall be the rate that would have been paid had the discharge not occurred.
(b) For purposes of this subsection, tardiness becomes excessive if an employee is late for 6 4 or more scheduled workdays in the 12 month 120 day period preceding the date of the discharge without providing adequate notice to his or her employer.
(c) For purposes of this subsection, absenteeism becomes excessive if an employee is absent for 5 2 or more scheduled workdays in the 12âˆ'month 120 day period preceding the date of the discharge without providing adequate notice to his or her employer.
(d) 1. The requalifying requirements under par. (a) apply only if the employer has a written policy on notification of tardiness or absences that:
a. Defines what constitutes a single occurrence of tardiness or absenteeism;
b. Describes the process for providing adequate notice of tardiness or absence, and, regarding tardiness, which gives the employee a reasonable time for providing notice and which at least allows the employee the opportunity to provide notice as soon as practically possible; and
c. Notifies the employee that failure to provide adequate notice of an absence or tardiness may lead to discharge.
2. The employer shall provide a copy of the written policy under subd. 1. to each employee and shall have written evidence that the employee received a copy of that policy.
3. The employer must have given the employee at least one warning concerning the employee's violation of the employer's written policy under subd. 1. within the 12 month period preceding the date of the discharge.
4. The employer must apply the written policy under subd. 1. uniformly to all employees of the employer.
But, the Department bill that set forth what the Advisory Council had proposed, see 2013 SB200, did NOT contain these provisions. When the first public hearing for 2013 SB200 was under way on 29 May 2013, the Joint Finance Committee introduced an amendment to the then budget bill, 2013 AB40, which included the absenteeism language now at issue in Beres. See "JFC UI Amendments" (29 May 2017) (available at
Into this messy legislative history arrives a relatively simple fact pattern. The employer nursing home in Beres had an attendance policy which indicated that employees would be terminated for a single absence during their 90-day probationary period if they were a no call, no show. The claimant in this case, Ms. Beres, was extremely ill and did not report to work or call in her absence. The employer called her home, and her spouse indicated that she was too sick to work. The employer then terminated her employment, and the Department denied her claim for unemployment benefits as misconduct because of absenteeism.
The Commission over-turned that disqualification because the claimant was not responsible for her illness and a single illness did not meet the threshold disqualification of more than two absences within 120 days.
The Department, however, appealed the case to circuit court and argued that employers have the option under this disqualification to set their own attendance standard for what will constitute misconduct pursuant to this statutory phrase: "unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature." For the Department, the employer's absenteeism policy — a single no call, no show absence during the probationary period — was the attendance requirement "specified" by the employer and so constituted misconduct under this provision. The circuit court agreed with the Department, and the Commission appealed.
The appeals court agreed with the Commission 2-1. The Department has now taken this case to the Wisconsin Supreme Court. In granting review, the court added the following additional question to be examined:
Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?
Recall that in Operton, three justices proclaimed that agency deference unconstitutionally impinges on the power of elected judges to decide what the law is on their own initiative.
A decision in this case raises two major problems. First, the court could gut agency deference. As a result, any and all decision by administrative agencies will be litigated under de novo review in circuit court and again at the appeals court. Certainly, there will be more billable hours. But, there will also be much greater expenses.
And, I doubt the outcome will be all that friendly to workers. Take the Wisconsin Bell/Carlson case, the disability discrimination case. That case is completely upended if de novo review is always applied by every court because judicial independence mandates such independence.
Second, the absenteeism provision will allow an employer to have a policy of a single absence being grounds for discharge. Any discharges that then occur under this policy will count as misconduct for UI purposes. Keep in mind that there is nothing here that requires this policy to be uniformly applied (the point will probably be litigated but I suspect that any uniformity requirement will be tossed). This disqualification would be a disaster for unrepresented workers. Represented workers will also be confronted with a significant change in the legislative landscape and new bargaining demands to change absenteeism policies to match what DWD will allow as misconduct.
Note that this UI disqualification now applies to WC benefit cases as well. How many times do folks on partial WC disability miss work?
Be sure to monitor this one as this will create substantial burdens and obstacles for employees seeking unemployment benefits when they are terminated for attendance.

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