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Absenteeism And Proof Of “Misconduct”

The Wisconsin Unemployment Compensation Act defines “misconduct” to include “absenteeism on more than 2 occasions within the 120-day period before the date of the employee’s termination, unless otherwise specified by [the] employer in an employment manual [which the employee has acknowledged receiving].” Wis. Stat. § 108.04(5)(e). What if the employer’s attendance policy defines excessive absenteeism, and grounds for termination, in a manner that is more restrictive than “2 occasions in a 120-day period?” Is it still “misconduct” for unemployment purposes?

In Wisconsin DWD v. LIRC, 2018 WI 77, the Wisconsin Supreme Court held that it is. The policy at issue in the case provided that a single absence without advance notice during an employee’s probationary period would result in termination. The Labor and Industry Review Commission found that the “2 in 120” day period provided in the statute constituted a floor for eligibility purposes, and that violations of policies with stricter parameters did not constitute “misconduct” for eligibility purposes. The Court disagreed, finding, “the plain language of [the statute] 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.” Id at ¶ 5.

This is good news for employers – and all the more reason to adopt a formal, written attendance policy that is distributed to, and signed for by all employees.

If you have any questions feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or

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