March 16, 2017 – Even if an employer has a zero tolerance policy on missing work without notice, an employee who is fired may still qualify for unemployment benefits, a state appeals court has ruled, because state law sets a floor on eligibility.

In Wisconsin DWD v. Wisconsin LIRC, 2016AP1365 (March 8, 2017), a three-judge panel for the District II Court of Appeals ruled (2-1) that a nurse fired for one absence without notice can still receive unemployment benefits under state law.

The case began when a registered nurse, Valarie Beres, did not report for work in 2015. Her employer, Mequon Jewish Campus, maintained an attendance policy that required workers to call two hours in advance of any expected absence from work.

Beres did not call two hours in advance to report flu-like symptoms, and she was still on her 90-day probation period for new workers, allowing for her immediate termination under the attendance policy. Mequon Jewish Campus fired Beres three days later.

She filed for unemployment benefits but the DWD denied her application on the grounds that she violated the employer’s attendance policy and thus committed misconduct. The Labor and Industry Review Commission (LIRC) reversed the DWD’s decision to deny.

The Absenteeism Statute

In Wisconsin, workers are ineligible for unemployment benefits if fired for “misconduct,” including “absenteeism.” Under Wis. Stat. section 108.04(5)(e), absenteeism means excessive tardiness or absence from work, without notice and a valid reason, “on more than 2 occasions within the 120-day period” before the employee is fired, “unless otherwise specified by his or her employer in an employment manual.”

DWD said the statute allows employer attendance policies to be more restrictive than state law if specified in employer manuals. Thus, an employee who violates a more restrictive policy commits “misconduct” and is ineligible for unemployment benefits.

But LIRC disagreed and reversed DWD’s decision on Beres. LIRC concluded that state law is a “default provision,” but also sets a floor on eligibility for unemployment benefits.

Thus, in Beres’ cases, LIRC argued that a denial violated the statute, because Beres was fired after just one absence without notice, and the statute requires more than two absences within four months. The circuit court rejected LIRC’s interpretation.

But an appeals court majority reversed, adopting LIRC’s interpretation of the statute. The 2-1 majority noted that the law changed in 2013. Previously, ineligibility for absenteeism without notice did not trigger without 5 or more absences within a year.

The majority ruled that LIRC’s decision was entitled to due weight deference regardless of recent legislative changes that tightened standards related to absenteeism because LIRC had previously decided many cases of absenteeism under the old statute.

The majority noted that employers can adopt attendance policies that are more restrictive than state law, but those policies won’t control eligibility for unemployment benefits in those cases where other misconduct or substantial fault is not present.

“Employers are free to adopt a ‘zero tolerance’ attendance policy and discharge employees for that reason, but not every discharge qualifies as misconduct for unemployment insurance purposes,” wrote Judge Reilly for the 2-1 majority. 

Dissent

Judge Mark Gundrum dissented, concluding LIRC was not entitled to due weight deference and de novo review applies because the statute is new and thus the case is one of first impression. In addition, Gundrum concluded LIRC’s interpretation is wrong.

“The language plainly states that the default standard applies ‘unless otherwise specified … in an employment manual' of which the employee has acknowledged receipt with his or her signature,” wrote Judge Gundrum, a former state legislator.

Gundrum said nothing in the plain language of section 108.04(5)(e) prohibits employers from establishing attendance policies that are more restrictive than the default provision.

“LIRC does not like the new policy the legislature and governor enacted, so it has decided to effectively rewrite it,” he wrote. “And the majority is going along with it.”