Wis. Dep't of Workforce Dev. v. Wis. Labor & Indus. Review Comm'n
| Decision Date | 26 June 2018 |
| Docket Number | No. 2016AP1365,2016AP1365 |
| Citation | 2018 WI 77,914 N.W.2d 625,382 Wis.2d 611 |
| Parties | 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. |
| Court | Wisconsin Supreme Court |
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.
¶ 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.
¶ 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" disqualifying a terminated employee from obtaining unemployment compensation benefits.
¶ 9 Beres appealed DWD's decision to the Labor and Industry Review Commission (LIRC). LIRC reversed the decision of DWD, concluding that an employee is not disqualified from obtaining unemployment compensation benefits when the employee is terminated for violating an employer's absenteeism policy if that policy is more restrictive than the "2 in 120" day standard provided by Wis. Stat. § 108.04(5)(e). 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. Accordingly, LIRC held that Beres was entitled to unemployment compensation benefits. DWD appealed to the circuit court.
¶ 10 The circuit court reversed LIRC's decision, adopting DWD's interpretation of Wis. Stat. § 108.04(5)(e) : An employer may, in a written employment manual signed by the employee, set forth its own policy regarding absenteeism, and a violation of the employer's policy constitutes "misconduct" under the statute resulting in a terminated employee's disqualification from obtaining unemployment compensation benefits. In the instant case, the employer's policy (of which Beres acknowledged receipt with her signature) was that during an employee's probationary period, a single instance of an employee's absence without notification to the employer would result in termination. In other words, the employer commanded that a single "No Call No Show" would result in termination.
According to the circuit court, under § 108.04(5)(e), termination for violating the employer's absenteeism policy is termination for "misconduct" and renders the terminated employee ineligible for unemployment compensation benefits.
¶ 11 LIRC appealed to the court of appeals. The court of appeals adopted LIRC's interpretation of Wis. Stat. § 108.04(5)(e), holding that an employee is not disqualified from obtaining unemployment compensation benefits when the employee violates an employer's absenteeism policy if that policy is "stricter" than the "2 in 120" day standard provided by § 108.04(5)(e). The court of appeals concluded 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 standard under the statute.
¶ 12 The instant case requires this court to determine the validity of LIRC's order interpreting and applying Wis. Stat. § 108.04(5)(e). The court may set aside an order of LIRC if LIRC acted "without or in excess of its powers." Wis. Stat. § 108.09(7)(c) 6.a. It is the province and duty of the judiciary to say what the law is.5 Because we determine that LIRC based its order on an incorrect interpretation of § 108.04(5)(e), we conclude that LIRC acted without or in excess of its powers.
¶ 13 In contrast to LIRC's interpretation of the statute, we conclude 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 § 108.04(5)(e), and termination for the violation of the employer's policy will result in disqualification from receiving unemployment compensation benefits even if the employer's policy is more restrictive than the policy set forth in the statute.
¶ 14 The governing statute is Wis. Stat. § 108.04(5)(e). It states that "misconduct" includes an employee's absenteeism if the employee is absent on more than 2 occasions within a described 120-day period "unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature." Wis. Stat. § 108.04(5)(e). The governing statute reads as follows:
Wis. Stat. § 108.04(5)(e) (emphasis added). The key language, the meaning of which the parties dispute, is the "unless" clause emphasized above.
¶ 15 The statute is written in ordinary English and creates a simple framework. The text of Wis. Stat. § 108.04(5)(e) has three main clauses relating to absenteeism. Only the first two clauses are relevant in the instant case.
¶ 16 First, the statute defines "misconduct" as including absenteeism: "[M]isconduct includes: ... [a]bsenteeism by an employee on more than 2 occasions within the 120-day period before the date of the employee's termination." Wis. Stat. § 108.04(5)(e).
¶ 17 Second, the statute sets forth an "unle...
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