Case Law Update: Bevco Precision Manufacturing Co. v. Wisconsin Labor and Industry Review Commission, 2023 AP 1057 (Court of Appeals).

Sep. 2024

The court of appeals upheld a decision that said a violation of an employer’s absentee policy was sufficient to withhold Unemployment benefits.  Per this employer’s policy, an employee may be suspended for 3 days without pay if they had 10 points.  If an employee exceeded 10 points, the policy said the employee would be terminated immediately for “excessive absenteeism”.

This policy was different than the state statute, which reads:

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.

Citing to a prior WI Supreme Court decision, this court said, “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.”

Employers:  Let us know if you need help in creating policies, deciding whether to terminate or suspend an employee, or in any related matters.