Basic Guide to Wisconsin Unemployment
With the current economic climate not only are many individuals losing their jobs, but often times their employers are fighting unemployment claims in order to try to reduce their own expenses. The following is a basic guide to common issues at Wisconsin Unemployment Insurance hearings.
The information contained in this guide is general and not intended to be specific legal advice. As evey unemployment will have unique facts, you should consult with a lawyer regarding your specific situation.
A. When an employee is terminated, the question that is applicable for the purposes of unemployment is, “was the employee terminated for misconduct?”
B. Administrative Law Judges invariably use the standard from Boynton Cab v. Neubeck & Industrial Comm’n, 237 Wis. 249 (1941) in determining whether there was misconduct.
i. Misconduct is limited to conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to respect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show and intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer.
ii. Inefficiency, unsatisfactory conduct, failure to perform based on inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are NOT misconduct
1. Although intent is a factor in the standard, the “Reasonable Person” standard is used. See Universal Foundry Co. v. DILHR, 86 Wis.2d 582 (1979)
i. Misconduct- Employee intentionally throws wrench into a machine that he is working on in order to break the machine and is fired.
ii. Not Misconduct- Employee accidentally drops wrench while working on a machine, the machine breaks, and the employee is fired.
D. Single isolated incident
i. Single act of unsatisfactory work or disobedience usually is not enough to constitute misconduct
ii. Refusing to perform an assignment, without any reason, after being warned that the refusal was insubordinate was found to be misconduct even though it was a single incident. Gipson v. Marion Catholic Center, Inc. Hearing No. 98601313MW (LIRC 3/17/99)
iii. Some conduct is so unacceptable that even a single isolated act will result in a finding of misconduct. Examples of such conduct include:
1. Theft from the employer Young v. Hondo, Inc. Hearing No. 03604582MW (LIRC 11/7/2003) (theft of $12 worth of soda)
2. Physical violence in the workplace McGraw-Edison Co. v. DILHR, 64 Wis. 2d 703 (1974). (employee pushed or threw 10 pound top of a dryer at co-worker causing injury)
II. QUIT FOR CAUSE
A. An employee who quits his employment may nevertheless receive benefits if it is determined that “the employee terminated his or her work with good cause attributable to the employing unit.” Wis. Stat. §108.04(7)(b).
i. In general, “good cause” means some act or omission by the employer which justifies the quit. It must involve some fault on the part of the employer, and it must be “real and substantial”. See Nottelson v. DILHR 94 Wis.2d 106 (1980); Kessler v. Industrial Comm’n 27 Wis.2d 398 (1965).
ii. Normally, for a quit to be justified, the employee must make timely complaints to the employer and give the employer time to rectify the situation before quitting, unless such efforts by the employee would be unreasonable or futile under the circumstances.
B. The following are some typical examples of a quit for good cause
i. Unilateral Material Change in the Terms of Employment by the employer
1. Change in the commuting distance of an employee which lead to a significant reduction in pay was seen to be good cause for a quit. Farmers Mill of Athens, Inc. v. DILHR 97 Wis.2d576 (Ct. App. 1980).
2. Increased job responsibilities with no increase in pay lead to a finding of good cause for a quit. Cordts v. School District of Solon Springs Hearing No. 95201476SU (LIRC 6/5/1996)
3. Wait staff switched from dinner shift to lunch shift resulting in significantly lower earnings held to be good cause. Ponzi v. Grand Milwaukee Hotel Hearning No. 98604659MW (LIRC 11/10/1998).
ii. Failure of Employer to comply with contract terms
1. Failure to pay overtime wages
2. Failure to pay promised raise despite requests from employee
iii. Illegal Acts by Employer
1. Employer makes unlawful wage deductions
2. Employer implicates innocent employee in criminal fraud
3. Employer directs employee to violate the law
iv. Improper or unreasonable conduct by Employer
1. Employer broke into employee’s locker and questioned him unreasonably while investigating a theft.
2. Abuse or mistreatment from employer (i.e. Employer slaps employee)
v. Unsatisfactory Working Conditions
1. Truck driver quit when after informing employer that the brakes were not working properly and nothing was done to fix them, the employee refused to drive the truck. Hodgeman v. B&D Services, Inc. Hearing No. 97201997RL (LIRC 7/30/1998)
2. Employee quit when he refused to work on a saw that would throw material back at him after complaining to the employee that the saw needed a guard, and after OSHA established safety violations in regards to the saw. Kuhr v. Harvest Day Wholesalers LIRC (1992).
III. IS IT A QUIT OR A DISCHARGE?
A. “When an employee shows that he intends to leave his employment and indicates such intention by word or manner of action, or by conduct, inconsistent with the continuation of the employee-employer relationship, it must be held…that the employee intended and did leave his employment…voluntarily.” Nottelson, 94 Wis.2d 106.
i. A good point to look at in analyzing whether it is a quit or a discharge is looking at who initiated the idea of the employment relationship ending.
1. If the employer initiates the idea of ending the relationship it is usually considered a termination.
2. If the employee initiates the idea of ending the relationship it is usually considered a quit.
a. Employee who left work without notice on a Friday, and left her keys on her desk, but called the employer on Sunday morning held not to be a quit. Moore v. Carpenters District Council of Milwaukee County and Vicinity Hearning No. 98607439MW (LIRC 6/22/99)
b. Employee who left work early, asked for her paycheck, and took her personal belongings held to be a quit. Ingram v. Neurological Clinic Hearing No. 99603350RC
B. In a misconduct case, the employer has the burden of proof. In a quit case, the employer has the burden to establish that the employee quit voluntarily, and the employee has the burden to prove that it was a quit for good cause.