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Effective April 2, 2006, Wisconsin’s misconduct standard under the unemployment insurance laws changed. The misconduct statute now allows for an employer to disqualify a claimant from unemployment insurance benefits if the individual has excessive absences and tardiness without proper notice to the employer. In order to take advantage of this new provision, an employer must adopt the following:
1. Excessive absences without notice must be defined as five (5) or more in a 12-month period.
- The employer’s standard for excessive absence without notice must be defined to reflect the definition in the statute. An employer would not be able to terminate an employee, for example, after four (4) late notices of absence and disqualify an employee for unemployment benefits.
2. Excessive tardiness without notice must be defined as six (6) or more in a 12-month period.
- The employer’s standard for excessive tardiness without notice must be defined to reflect the definition in the statute. An employer would not be able to terminate an employee, for example, after five (5) instances of tardiness without proper notice and disqualify an employee from unemployment benefits.
3. An employer must have a written policy for notification of absence and tardiness.
- The employer can establish any reasonable policy for notice of absence or tardiness. For example, an employer can have as its policy that employees must give notification no later than one hour prior to the start time when an employee will be absent or late. Or an employer can mandate that the employee contact a certain number and leave a voice mail message no later than 30 minutes prior to the beginning of the shift in cases of absence or tardiness. This policy can, and should, be made a part of the employee handbook. Initially, a separate written policy could be used. The policy should be dated to show its effective date. The policy must specifically state that failure to provide adequate notice of an absence or tardiness may lead to discharge.
4. An employer must be able to demonstrate that the employee received a copy of the policy.
- An employer should have an employee sign an acknowledgment form when the new policy is distributed. If the employer’s attendance policy is revised in the employee handbook, it is recommended that employees sign a separate form for this policy or at least an acknowledgment that they are aware that the absenteeism/tardiness policy has changed. This would be the document that would be submitted to the Department of Workforce Development to verify that the employee was aware of the employer’s notice policy.
5. An employee must receive at least one warning prior to discharge.
- This step is crucial to the discipline process. The employee must be put on notice that termination will result in the next violation of the policy.
6. The policy must be consistently applied to all employees.
- Consistency is always a requirement when an employer’s disciplinary policy is being implemented. If an employee can demonstrate that he/she was treated differently from other similarly situated employees, the misconduct disqualification will not be allowed.
Benefits will be denied until six (6) weeks have elapsed and the employee has earned six (6) times his/her weekly benefit rate.
Wisconsin's Minimum Wage Increased to $6.50 Per Hour
On June 1, 2006, Wisconsin’s minimum wage for adults increased to $6.50 per hour from the previous rate of $5.70. The new minimum wage rate for minors is $5.90 and opportunity employees can be paid a minimum of $5.90 per hour. (An opportunity employee is an individual who is at least 18 but not yet 20 years old and who has worked 90 or fewer consecutive calendar days.)
All employers should review their compensation practices to ensure that each employee earns at least the minimum wage required. Employers who require employees to pay for protective clothing (such as safety glasses, aprons, safety shoes), tools or equipment, or uniforms, should especially take another look at current pay practices. An employer must make sure that any employee out-of-pocket expenses deducted from gross wages still result in the employee earning the appropriate required minimum wage before taxes.
For more information regarding wage and hour, unemployment insurance benefits or other employment law issues, please call our educational services department at (414) 988-8400 or e-mail kam@kclegal.com.
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