Operton v. Labor & Industry Review Commission

LUNDSTEN, J.

¶ 33. (concurring). I join in the result reached by the majority, but not the opinion. Although there is much to commend in the majority opinion, my analysis is sufficiently different that I choose to write separately.

¶ 34. As the majority explains, the legislature has created a new standard intended to further limit the number of employees terminated for poor performance who are eligible for certain unemployment benefits. The new standard is "substantial fault," and I agree with the majority that it plainly does not cover Operton's termination. In my view, the level of deference granted to LIRC does not matter. Regardless the degree of deference granted, LIRC erred.

¶ 35. Wisconsin Stat. § 108.04(5g)(a) defines "substantial fault" in sweeping terms. In addition to what*188ever one might glean from the term itself, the legislature tells us that " 'substantial fault' includes those acts or omissions of an employee over which the employee exercised reasonable control and which violate reasonable requirements." Id.

f 36. The broad sweep of this initial "substantial fault" language is exemplified in this case. All agree that even Operton's most minor mistakes fit this initial definition. For example, when Operton accepted a WIC check for some items not covered by the WIC program, resulting in a $2.89 loss to Walgreen, her act was something over which she had control and the act violated a reasonable Walgreen requirement.

f 37. But the portion of the new standard that really matters is not the initial sweeping definition of "substantial fault." Rather, it is the three circumstances the legislature exempts from "substantial fault." The three circumstances that are not "substantial fault" are:

1. One or more minor infractions of rules unless an infraction is repeated after the employer warns the employee about the infraction.
2. One or more inadvertent errors made by the employee.
3. Any failure of the employee to perform work because of insufficient skill, ability, or equipment.

Wis. Stat. § 108.04(5g)(a)l., 2., and 3. Notably, these are independent alternatives. If just one of the alternatives applies, "substantial fault" is not present. On appeal, the dispute has focused on the second alternative. Operton argues that her eight errors were "one or more inadvertent errors" and, therefore, not "substantial fault."

*189¶ 38. LIRC does not seriously dispute that Oper-ton's errors, viewed individually, were all "inadvertent errors." LIRC's quibble on this point is brief and confusing. LIRC says that, although Operton's acts were unintentional, there may be some distance between unintentional and inadvertent. I address that topic no further.

¶ 39. Rather than seriously contest whether Op-erton's errors were "inadvertent errors," LIRC instead argues that a "series of even inadvertent failures in their cumulative effect at some point goes beyond inadvertence to substantial fault." This argument is flawed in at least two ways.

¶ 40. First, LIRC does not attempt to explain what it means by "at some point." What is it about Operton's eight errors over 20 months that moves them from "one or more inadvertent errors" to "substantial fault"? LIRC gives no answer.

¶ 41. Second, LIRC's underlying statutory construction argument is flawed. LIRC asks us to take the same approach to interpreting "substantial fault" that has been applied to "misconduct." LIRC tells us that, when it comes to "misconduct," the statutory bar is set high and generally refers to deliberate violations and acts evincing a high degree of negligence. I understand LIRC to be arguing that we should follow the lead of Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), which explains that the statutory "misconduct" standard can be satisfied when an employee repeats an act that, standing alone, would not have constituted misconduct. According to LIRC, like the Boynton Cab court, we should issue an opinion clarifying that" at some point" a " series of even inadvertent failures" constitutes "substantial fault."

*190¶ 42. There are differences in the statutory language and the circumstances between what the supreme court faced in Boynton Cab and what we face here. But I conclude that one difference is fatal to LIRC's statutory construction argument. Unlike the language at issue in Boynton Cab, a 1941 case that addressed an earlier version of the "misconduct" subsection, the new "substantial fault" standard has language addressing repeat conduct.

¶ 43. Both of the first two circumstances that are not "substantial fault" use the phrase "one or more." Both times this repeat-errors language is there to limit the meaning of "substantial fault." That is, the statute tells us that, if all we have is repeated "minor infractions of rules" or repeated "inadvertent errors," we do not have "substantial fault." See Wis. Stat. § 108.04(5g)(a)l. and 2. No similar language constrained the Boynton Cab court. Indeed, I doubt the Boynton Cab court's interpretation of "misconduct" would have been so broad if the statutory language at issue included a limitation saying that "one or more negligent acts" is not misconduct.

¶ 44. Thus, I reject LIRC's "at some point" argument.

¶ 45. LIRC also suggests that it is significant that Operton received warnings. But the "inadvertent errors" alternative that Operton relies on, unlike the rules infractions alternative, does not go on to say "unless [an error] is repeated" after a warning. This omission, on the heels of express warning language in the rules infractions alternative, supports the conclusion that warnings are not relevant under the "inadvertent errors" alternative.

¶ 46. In conclusion, I make an observation about burden. The majority correctly points out that *191Walgreen, as the employer, had the burden of proving that Operton was ineligible. Majority op. at ¶ 21. That observation goes to the burden of producing evidence. See Consolidated Constr. Co. v. Casey, 71 Wis. 2d 811, 820, 238 N.W.2d 758 (1976) ("burden of introducing credible evidence"). My attention is on the statutory interpretation arguments before us on appeal. In that respect, LIRC has the burden of persuading us that the statutory language at issue here has meaning that operates to deny Operton unemployment benefits. "As our supreme court stated in Princess House, the [unemployment benefits] statute should be 'liberally construed to effect unemployment compensation coverage for workers who are economically dependent upon others in respect to their wage-earning status.' " Larson v. LIRC, 184 Wis. 2d 378, 390, 516 N.W.2d 456 (Ct. App. 1994) (quoting Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 62, 330 N.W.2d 169 (1983)).1 I see nothing in LIRC's arguments explaining how the statutory definition of "substantial fault" can reasonably be read as providing a standard that excludes Operton's eight errors — over 20 months, with some errors several months apart — from the plain meaning of "one or more inadvertent errors." LIRC gives us no analysis, tethered to the statutory language, that provides a basis *192for concluding that the frequency of "inadvertent errors" in this case reached some undefined "point" at which it converted to "substantial fault."

¶ 47. For these reasons, I concur.

Several other court of appeals cases look to Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 330 N.W.2d 169 (1983). See DWD v. LIRC, 2010 WI App 123, ¶ 19, 329 Wis. 2d 67, 792 N.W.2d 182 (similarly relying on Princess House); DILHR v. LIRC, 155 Wis. 2d 256, 268 n.5, 456 N.W.2d 162 (Ct. App. 1990) ("The Unemployment Compensation Act is remedial in nature and should be liberally construed."); Grutzner S.C., Byron, Holland & Vollmer v. LIRC, 154 Wis. 2d 648, 653, 453 N.W.2d 920 (Ct. App. 1990) ("The Act is designed to protect economically dependent individuals.").