1 22.
GUNDRUM, J.(dissenting). I dissent because the majority affords undue deference to LIRC's *198interpretation of Wis. Stat. § 108.04(5)(e), and in doing so, adopts an incorrect interpretation of the statute.
¶ 23. To begin, the majority incorrectly affords LIRC's interpretation "due weight" deference. I believe de novo review is appropriate because the statutory language in question is new and the correct interpretation of this language is an issue "of first impression." See Milwaukee Cty. v. LIRC, 2014 WI App 55, ¶ 16, 354 Wis. 2d 162, 847 N.W.2d 874 (citation omitted). As the majority points out, the statute "has been significantly amended." Majority, ¶ 11 n.5. LIRC's legal interpretation of these changes by the legislature is entitled to no deference. This is precisely the type of situation where courts should independently review LIRC's interpretation of a statute, so LIRC does not continue to erroneously apply the statute.
¶ 24. Wisconsin Stat. § 108.04(5)(e) defines misconduct as:
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.
LIRC interprets this new language to mean that an employer policy defining misconduct may be less strict than the Wis. Stat. § 108.04(5)(e) "default standard" of more than two absences within 120 days, but may not be more strict. LIRC misreads the statute.
*1991 25. The language plainly states that the default standard applies "unless otherwise specified . . . in an employment manual of which the employee has acknowledged receipt with his or her signature." Nothing in Wis. Stat. § 108.04(5)(e) suggests the legislature intended "unless otherwise specified . . ." to mean only "unless a less strict policy is specified." LIRC simply reads that language into the statute—never mind the legislature.
¶ 26. In addition, whether a policy is more or less strict than the default standard may be in the eye of the beholder. Take the old "5 in 12 months" standard for example. The majority refers to that standard as "more generous" than the "more than 2 occasions within the 120-day period" standard, but is it? It would not seem "more generous" to an employee that had only two absences in each of three consecutive 120-day periods, for that conduct would not be considered misconduct under the new default standard (because it is not more than two absences in any given 120-day period), but under the old standard it would be considered "excessive" and affect unemployment benefits (because it amounts to more than five absences in twelve months). Or consider an employer policy subjecting an employee to termination on the basis of misconduct if he/she had more than one unexcused absence within thirty days. Would that be more or less strict than the default standard of termination on the basis of misconduct for more than two unexcused absences within 120 days? Under a "more than 1 in 30" policy, an employee could be terminated for misconduct if he/she had two absences within a thirty-day period, but under the default standard, the employee could not be terminated for misconduct unless he/she also had one more absence within the *200following ninety days. By this view, the employer policy might seem more strict than the default standard. The employer policy would seem to be less strict than the default policy, however, if an employee had one unexcused absence in each of three or even four consecutive months. Under the employer's policy, the employee could not be terminated for misconduct because he/she was not absent more than one time within thirty days. Under the default standard, however, the employee could be terminated for misconduct —and lose unemployment benefits—because he/she would have been absent more than two times in 120 days.
¶ 27. LIRC of course recognizes all of this, which is why it really interprets Wis. Stat. § 108.04(5)(e) as requiring that an employee be in violation of both the default standard and his/her employer's standard in order for the termination to be considered to have been for misconduct.1 This interpretation of course is completely inconsistent with the plain language of the statute, which, again, defines misconduct as " [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 ... in an employment manual." (Emphasis added.)
¶ 28. The legislature did not intend for LIRC to decide which employer policies are more or less strict than the default standard, because it did not write the statute that way. The legislature did not intend that absenteeism would only be considered misconduct if the employee was in violation of both his/her employer's standard and the default standard, because it did *201not write the statute that way. The legislature wrote the statute as it did to allow employers to set standards for misconduct that may work better for their individual businesses than the default standard, and those standards would also serve as the standard for misconduct for purposes of unemployment benefits— whether the employer's standard was more or less strict than the default standard. That is why the legislature wrote "unless otherwise specified." DWD correctly notes, "The statute is clear that if the employer satisfies [the "unless" conditions], the statute's default standard is not applicable."
¶ 29. Other language of Wis. Stat. § 108.04(5)(e) should also be considered. As DWD points out:
A disqualification under the tardiness prong of [§ 108.04](5)(e) requires only that the employer "communicate" the employer's tardiness policy to the employee. Neither the default standard nor the tardiness provision requires that the employer communicate the absence/tardiness policy in writing, much less prove an "acknowledged receipt [of a policy] with the employee's signature." (Emphasis added.)
I agree with DWD that it is unlikely
the Legislature would have created the provision encouraging employer policies on absenteeism—with disqualification conditioned on written notice to the employee and proof of receipt by signed acknowledgement —solely, as LIRC contends, to support disqualification by standards that are less strict than the statutory default standard. The default standard was legislated in the same sentence comprising [§ 108.04](5)(e) but requires no notice of that standard to the employee in order to effect a misconduct disqualification.
The fact the legislature wrote into para. (5)(e) a more stringent requirement in order for a policy "otherwise *202specified" by an employer to have effect supports the plain reading of para. (5)(e) discussed above.
¶ 30. At bottom, LIRC does not like the new policy the legislature and governor enacted, so it has decided to effectively rewrite it. And the majority is going along with it. It is neither LIRC's nor this court's role to "soften" what the legislature intended by what it wrote. If the consequences of what it wrote are harsh in the eyes of some, legislators may be held accountable for it at the ballot box; new representatives and senators may be elected to affect a change in the language. But neither LIRC nor we are charged with changing the language ourselves.
¶ 31. I would affirm the circuit court.
Of course, presumably the matter would not even be before LIRC if the employee had not been terminated for violating the employer's standard.