In 2013, the Wisconsin legislature tightened the eligibility requirements for unemployment benefits as they related to discharges for attendance. Under the previous law, an employee had to have “5 or more” absences without notice in a twelve-month period in order for his/her absenteeism to rise to the level of statutorily-defined misconduct. The legislature reduced that level to “more than 2 [absences] within a 120-day period . . . unless otherwise specified by [the] employer in an employment manual. . .” Wis. Stat. § 108.04(5)(e). (The employee must also have failed to provide both notice and a valid reason for the absence.)

What if an employer’s attendance policy calls for discharge in the event of less than two absences without notice in a 120-day period? Is that still misconduct under § 108.04(5)(e)?

The Wisconsin Court of Appeals recently answered this question – in the negative. In DWD v. LIRC, 2016AP1365 (Mar. 8, 2017), the court reviewed whether a discharge pursuant to an employer’s policy that called for termination in the event of a single absence without notice in an employee’s first ninety days of employment constituted “misconduct” under § 108.04(5)(e), falling within the “unless otherwise specified” provision of the statute. Finding that it did not, the court adopted the position of the Labor and Industry Review Commission, which held that the “2 in 120” requirement is a statutory floor, and the “unless otherwise specified in an employment manual” provision was only intended to cover policies that were more generous than the “2 in 120” default standard, not more restrictive. In other words, policies that result in discharge for absences without notice on two occasions or less, in a shorter period of time, do not automatically constitute misconduct under § 108.04(5)(e).

The court noted, however, that its decision only applied to absences being considered under the statutorily-defined level of misconduct in § 108.04(5)(e). An attendance-related discharge can still constitute “misconduct” if the employer can prove that the employee’s conduct met the Boyton Cab standard (i.e., “conduct evincing such willful or wanton disregard of an employer’s interests . . .”) or constituted “substantial fault” (i.e., “acts or omissions . . . over which the employee exercised reasonable control). Thus, while it is much easier to win a case based upon the “2 in 120” standard, an attendance claim can still be won based upon the underlying conduct of the employee and the reasons for the absences.

If you have any questions about the court’s decision or unemployment compensation, attendance and/or misconduct, feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com .