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Management-Side Labor and Employment Law 

 Client Alert                                                 

 Wisconsin                                                March 2017


Seneczko, Alan
Alan E. Seneczko
Court Clarifies "Misconduct" and Attendance
By:  Alan E. Seneczko, Esq.
In 2013, the Wisconsin legislature tightened the eligibility requirements for unemployment benefits as they related to discharges for attendance. Under the previous law, an employee had to have "5 or more" absences without notice in a twelve-month period in order for his/her absenteeism to rise to the level of statutorily-defined misconduct. The legislature reduced that level to "more than 2 [absences] within a 120-day period . . . unless otherwise specified by [the] employer in an employment manual. . ." Wis. Stat. § 108.04(5)(e). (The employee must also have failed to provide both notice and a valid reason for the absence.)
What if an employer's attendance policy calls for discharge in the event of less than two absences without notice in a 120-day period? Is that still misconduct under § 108.04(5)(e)?
The Wisconsin Court of Appeals recently answered this question - in the negative. In DWD v. LIRC, 2016AP1365 (Mar. 8, 2017), the court reviewed whether a discharge pursuant to an employer's policy that called for termination in the event of a single absence without notice in an employee's first ninety days of employment constituted "misconduct" under § 108.04(5)(e), falling within the "unless otherwise specified" provision of the statute. Finding that it did not, the court adopted the position of the Labor and Industry Review Commission, which held that the "2 in 120" requirement is a statutory floor, and the "unless otherwise specified in an employment manual" provision was only intended to cover policies that were more generous than the "2 in 120" default standard, not more restrictive. In other words, policies that result in discharge for absences without notice on two occasions or less, in a shorter period of time, do not automatically constitute misconduct under § 108.04(5)(e).
The court noted, however, that its decision only applied to absences being considered under the statutorily-defined level of misconduct in § 108.04(5)(e). An attendance-related discharge can still constitute "misconduct" if the employer can prove that the employee's conduct met the Boyton Cab standard (i.e., "conduct evincing such willful or wanton disregard of an employer's interests . . .") or constituted "substantial fault" (i.e., "acts or omissions . . . over which the employee exercised reasonable control). Thus, while it is much easier to win a case based upon the "2 in 120" standard, an attendance claim can still be won based upon the underlying conduct of the employee and the reasons for the absences.
If you have any questions about the court's decision or unemployment compensation, attendance and/or misconduct, feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or [email protected] .
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NLRB Rejects Wisconsin's Dues Checkoff Restriction
By:  Alan E. Seneczko, Esq.
Wisconsin's Right-to-Work law, which became effective on March 11, 2015, prohibits employers and unions from entering into agreements which require membership in the union or the payment of dues as a condition of employment ("union security agreements"). The law also prohibits employers from deducting union dues from an employee's wages unless the employee has signed an authorization that is revocable upon thirty days' notice ("dues checkoff"), rather than the one-year period permitted under the National Labor Relations Act. The NLRA expressly allows states to enact Right-to-Work laws that prohibit union security agreements - but it does not contain a similar provision relating to dues checkoff. So, do the provisions of the NLRA that relate to dues checkoff supersede, or preempt, the more employee-friendly provisions of the Wisconsin law?
On March 14, 2017, an administrative law judge from the National Labor Relations Board found that it does. In Metalcraft of Mayville, Case 18-CA-178322, Metalcraft's contract with its union renewed in June 2016, subjecting any renewed agreement to the provisions of the Wisconsin Right-to-Work law. Once it did, Metalcraft notified the union that it would no longer enforce the union security and dues checkoff provisions of the expired agreement - prompting the union to file an unfair labor practice charge contending that the cessation of the dues checkoff provision constituted an unfair labor practice, and that the state law provision that allowed it was preempted by the NLRA. The ALJ agreed.
Section 8(a)(3) of the NLRA allows employers and unions to enter into agreements that require union membership and/or the payment of agency fees for the cost of representation as conditions of employment. However, Section 14(b) of the Act allows states to enact laws that prohibit such agreements (states that choose to do so have become known as "Right-to-Work" states), but makes no mention of dues checkoff, which is addressed elsewhere in the Act, in Section 302. Section 302 authorizes the deduction of dues from an employee's wages, provided the employer has received an authorization from the employee that "shall not be irrevocable for a period of more than a year." In other words, it expressly allows checkoff authorizations that cannot be revoked for a year - and the Wisconsin law requires termination upon 30-days' notice.
Relying on established precedent, including a recent decision on the Wisconsin law from the Western District of Wisconsin, see, IAM v. Allen, Case No. 16-cv-77-wmc (W.D. Wis., Dec. 28, 2016), the ALJ held that the provision of the Wisconsin law that permits revocation of a dues checkoff authorization upon 30-days' notice was "directly at odds" with federal law and therefore preempted by the NLRA.
What does this mean to unionized employers in Wisconsin? While the state Right-to-Work law remains intact as it relates to union security agreements, prohibiting employers from entering into agreements that require membership in the union and/or the payment of dues as a condition of employment, any dues checkoff authorizations signed by employees that are not revocable for a year remain in full force and effect, despite the 30-day notice provision required under Wisconsin law. If you have any questions about the ALJ's decision or the Wisconsin Right-to-Work law, feel free to contact WS Attorney Alan E. Seneczko at (262) 560-9696, or [email protected] .

May 21st Seminar - Nearly 200 people in attendance
Wessels Sherman Employer Empowerment Seminar

Join business professionals from throughout the Midwest on Friday, April 28, 2017, for a full day of learning about all the latest labor, employment and workplace legal developments of 2017. Attendees will hear from experienced labor and employment lawyers from Minnesota, Wisconsin, Illinois and Iowa, along with Special Guest Presenter: Nick Rogers, President of Minnesota's new Major League Soccer professional team - Minnesota United FC!  

Topics to be covered: 
  • Latest Workplace Developments, Trends and Issues Facing Employers in 2017
  • The State of Labor Unions Today and How It Impacts Employers
  • Assessing the Department of Labor's Influence Over Wage and Hour Law
  • Pregnancy and Accommodations: How Employers Can Keep Up With Increasing Legal Requirements
  • How to Talk About Independent Contractors on Your Company's Website: A Potential Disaster Area
  • How "Repealing and Replacing" the Affordable Care Act Will Impact Employers in 2017 and Beyond
  • Special Guest Speaker: Nicholas Rogers - President of Minnesota United FC: Achieving Business Goals in Regulation Time
  • The NLRB Under Trump: Continued Activism or Favorable to Business?
  • Intermittent Leave under the FMLA: Solutions, Suggestions and Sympathy
  • Dealing With Depression and Anxiety in the Workplace
  • Employee Handbooks: Tips for Employers
  • Best Practices for Hiring/Disciplining/Firing
  • Promising Practices for Managing a Diverse Workforce to Avoid Legal Pitfalls
  • Five Key Legal Areas Multi-State Employers Must Know About Minnesota, Illinois, Iowa and Wisconsin
Wessels Sherman
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Ph. 262-560-9696
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WS Wisconsin Client Alert is a complimentary newsletter published for clients and friends of Wessels Sherman. We reserve the right to limit distribution of our materials to representatives of management. The materials in this newsletter have been abridged from a variety of sources and are not necessarily applicable to a particular situation. The contents of this mailing should not be construed as legal advice. State Laws vary. Readers should consult with legal counsel before taking any action on matters covered by this mailing.