Wis. Dep't of Workforce Dev. v. Wis. Labor & Indus. Review Comm'n
Wis. Dep't of Workforce Dev. v. Wis. Labor & Indus. Review Comm'n
Opinion of the Court
¶ 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 *627
¶ 2 The Ozaukee County Circuit Court, Sandy A. Williams, Judge, adopted the position of the Department of Workforce Development that the plain language of
¶ 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.
¶ 4 The single issue presented to the court is as follows: Does
*628¶ 5 We conclude that the plain language of
I
¶ 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
¶ 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
¶ 10 The circuit court reversed LIRC's decision, adopting DWD's interpretation of
*629According 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
II
¶ 12 The instant case requires this court to determine the validity of LIRC's order interpreting and applying
¶ 13 In contrast to LIRC's interpretation of the statute, we conclude that the text of
III
¶ 14 The governing statute is
Sec. 108.04. Eligibility for benefits.
....
(5) Discharge for misconduct. An employee whose work is terminated by an employing unit for misconduct by the employee ... is ineligible to receive benefits .... "[M]isconduct" includes:
....
(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.
¶ 15 The statute is written in ordinary English and creates a simple framework. The text of
¶ 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."
¶ 17 Second, the statute sets forth an "unless" clause in defining "misconduct," including absenteeism.
¶ 18 The word "unless" is an ordinary word in everyday language. A helpful, but not dispositive, canon of statutory interpretation is that words in a statute that have a common meaning retain that common meaning in the statute.
¶ 19 The word "unless" ordinarily means "except if." Replacing the word "unless" with the words "except if" where the word "unless" appears in the statute may run into grammatical issues, but it helps make the meaning of the statute clear: An employee commits statutory "misconduct" by absenteeism if he or she is absent on more than two occasions within the 120-day period before the date of the employee's termination, except if the employee violates his or her employer's absenteeism policy that is specified "in an employment manual of which the employee has acknowledged receipt with his or her signature." This reading of the statute makes clear that an employer can opt out of the statutory definition of "misconduct" by absenteeism and set its own absenteeism policy, the violation of which will constitute statutory "misconduct."
¶ 20 We can further test whether the word "unless" in
¶ 21 For example, under
¶ 22 As an alternative argument, LIRC contends that
* * * *
¶ 23 We conclude that the word "unless" in the "unless otherwise specified" clause of
¶ 24 In the instant case, Beres's employer has an absenteeism policy specified in its employment manual. Beres acknowledged receipt of this policy in the employment manual with her signature. Beres violated the employer's policy when she missed an entire shift without providing her employer notice of the absenteeism. Under these circumstances, Beres's violation of her employer's written absenteeism policy constituted "misconduct" by absenteeism under
¶ 25 For the reasons set forth, we reverse the decision of the court of appeals.
By the Court. -The decision of the court of appeals is reversed.
All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.
The governing statute,
Sec. 108.04. Eligibility for benefits.
....
(5) Discharge for misconduct. An employee whose work is terminated by an employing unit for misconduct by the employee ... is ineligible to receive benefits .... "[M]isconduct" includes:
....
(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.
No one disputes that the employer's absenteeism policy in the instant case was contained in an employment manual of which the employee has acknowledged receipt with her signature as required by the statute.
DWD v. LIRC,
Because resolving this issue implicates the authoritativeness of an administrative agency's interpretation and application of a statute, we asked the parties to address the following issue: "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?"
We heard arguments in the instant case on the same day that we heard Tetra Tech EC, Inc. v. Department of Revenue,
State v. Williams,
Reference
- Full Case Name
- WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT, Plaintiff-Respondent-Petitioner v. WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION, Valarie Beres and Mequon Jewish Campus, Inc.
- Cited By
- 12 cases
- Status
- Published