2018 WI 77
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1365
COMPLETE TITLE: 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.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 183, 895 N.W.2d 77
PDC No: 2017 WI App 29 - Published
OPINION FILED: June 26, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 1, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Ozaukee
JUDGE: Sandy A. Williams
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2018 WI 77
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1365
(L.C. No. 2015CV358)
STATE OF WISCONSIN : IN SUPREME COURT
Wisconsin Department of Workforce Development,
Plaintiff-Respondent-Petitioner,
v.
FILED
Wisconsin Labor and Industry Review Commission,
JUN 26, 2018
Defendant-Appellant,
Sheila T. Reiff
Valarie Beres and Mequon Jewish Campus, Inc., Clerk of Supreme Court
Defendants.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 SHIRLEY S. ABRAHAMSON, J. 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
1
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
The governing statute, Wis. Stat. § 108.04(5)(e), reads as
follows:
(continued)
No. 2016AP1365
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
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.
Wis. Stat. § 108.04(5)(e) (emphasis added).
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No. 2016AP1365
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
2
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.
3
DWD v. LIRC, 2017 WI App 29, 375 Wis. 2d 183, 895
N.W.2d 77.
3
No. 2016AP1365
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.
I
4
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, 2018 WI
75, ___ Wis. 2d ___, ___ N.W.2d ___. The Tetra Tech court
decided to end the practice of deferring to administrative
agencies' conclusions of law. However, the Tetra Tech court
also said that, pursuant to Wis. Stat. § 227.57(10), courts will
give "due weight" to an administrative agency's experience,
technical competence, and specialized knowledge as the court
considers the agency's arguments. The court's Tetra Tech
opinion contains our analysis of the deference issue, which we
incorporate and apply in the instant case.
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No. 2016AP1365
¶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
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No. 2016AP1365
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.
6
No. 2016AP1365
¶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.
II
¶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
5
State v. Williams, 2012 WI 59, ¶36, 341 Wis. 2d 191, 814
N.W.2d 460 (citing Marbury v. Madison, 5 U.S. 137, 177 (1803)).
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No. 2016AP1365
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.
III
¶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:
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.
Wis. Stat. § 108.04(5)(e) (emphasis added). The key language,
the meaning of which the parties dispute, is the "unless" clause
emphasized above.
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No. 2016AP1365
¶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 "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. Wis. Stat.
§ 990.01(1); Bruno v. Milwaukee County, 2003 WI 28, ¶¶8, 20, 260
Wis. 2d 633, 660 N.W.2d 656 (cited with approval in State ex
rel. Kalal v. Circuit Court, 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110).
¶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
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No. 2016AP1365
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 Wis.
Stat. § 108.04(5)(e) means "except if" by replacing the word
"unless" used elsewhere in the statute with the words "except
if." A general rule of interpretation is that the same word
used several times in a statute has the same meaning every time
it is used. Bank Mut. v. S.J. Boyer Const., Inc., 2010 WI 74,
¶31, 326 Wis. 2d 521, 785 N.W.2d 462 ("When the same term is
used throughout a chapter of the statutes, it is a reasonable
deduction that the legislature intended that the term possess an
identical meaning each time it appears.").
¶21 For example, under Wis. Stat. § 108.04(5)(f), an
employee's falsifying business records of the employer is
"misconduct" "[u]nless" the falsification is "directed by an
employee's employer." This provision can be restated to say
that an employee commits "misconduct" when he or she falsifies a
business record "except if" the employee is directed to do so by
his or her employer. The word "unless" can also be replaced by
the words "except if" in § 108.04(5)(g). We therefore conclude
that the word "unless" in § 108.04(5) means "except if." See
Bank Mut., 326 Wis. 2d 521, ¶31.
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No. 2016AP1365
¶22 As an alternative argument, LIRC contends that Wis.
Stat. § 108.04(5)(e) disqualifies a former employee from
obtaining unemployment compensation benefits only when the
employee violates both the statutory "2 in 120" standard and an
employer's absenteeism policy. This argument fails because it
rewrites the statute by striking and replacing the word "unless"
in the text of the statute with the word "and." These two words
are not synonymous with one another. Neither LIRC nor this
court can rewrite this statute to replace the word "unless" with
the word "and."
* * * *
¶23 We conclude that the word "unless" in the "unless
otherwise specified" clause of Wis. Stat. § 108.04(5)(e) means
that an employee will be considered to have been terminated for
"misconduct," and thus disqualified from obtaining unemployment
compensation benefits, if the employee violates the statutory
definition of absenteeism, except if the employee adheres to the
employer's absenteeism policy specified in the employment manual
of which the employee acknowledged receipt with his or her
signature in accordance with the statute.
¶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
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No. 2016AP1365
constituted "misconduct" by absenteeism under Wis. Stat.
§ 108.04(5)(e), and Beres was properly denied the benefits at
issue.
¶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.
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No. 2016AP1365
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