Capitol Week-in-Review – March 16, 2017

Wisconsin Court of Appeals Issues Significant UI Benefits Decision

Earlier today, the Unemployment Insurance Advisory Council (UIAC) was briefed on a recent decision by the Wisconsin Court of Appeals which addressed eligibility for unemployment insurance (UI) benefits when an employer has terminated an employee for misconduct due to absenteeism.

The facts of the case were as follows:

Valerie Beres worked for Mequon Jewish Campus, Inc. as a nurse. The employer’s written attendance policy, which Beres signed, stated that a single no-call, no-show during an employee’s probationary period was grounds for termination. Employees were required to call two hours ahead of their shift if they were going to be absent. Beres had “flu-like symptoms” and failed to call her employer before missing work on one day during her probationary period. The employer terminated Beres, who filed for unemployment benefits.

The Department of Workforce Development (DWD) denied Ms. Beres UI benefits on the grounds of misconduct because Beres violated the employer’s attendance policy. In its decision, DWD relied upon a change in law enacted in 2013 which defined misconduct to include: 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. Of note, WIB lobbied in favor of this change in law.

Ms. Beres appealed the DWD determination to the Wisconsin Labor and Industry Review Commission (LIRC) – an independent, quasi-judicial state agency responsible for resolving appeals of disputed unemployment insurance, worker’s compensation and equal rights cases. LIRC reversed the DWD determination on the grounds that employers may not be more restrictive than the “2 in 120” day standard and that Ms. Beres’ actions did not meet the definitions of misconduct.

This case was eventually appealed to the Second District Wisconsin Court of Appeals. Last Wednesday, the Court of Appeals ruled in favor of LIRC by noting that “employers are free to adopt a ‘zero-tolerance’ attendance policy and discharge employees for that reason, but not every discharge qualifies as misconduct for unemployment insurance purposes.”

DWD has not decided whether to appeal this ruling to the Wisconsin Supreme Court. WIB members should consider consulting with legal counsel if they have an employee policy relating to absenteeism that is more restrictive than the “2 in 120” day standard.

LFB Issues Analysis of Tax\Fee Changes in Governor’s Budget Plan

Last Thursday, the non-partisan Legislative Fiscal Bureau (LFB) issued its analysis of the state tax and fee modifications proposed in the Governor’s budget plan. According to the LFB, his proposal decrease net taxes by $377.7 million and decreases net fees by $36.8 million. The most significant tax and fee reductions are:

Individual Income Tax Rate Reduction ($203.5 million)

The Governor’s plan: decreases the bottom rate of the state individual income tax from 4.0% to 3.9%; reduces the second lowest rate from 5.84% to 5.74%; and expands the range of the second lowest tax bracket beginning in tax year 2017.

Sunset of the Forestry Mill Tax ($180.5 million)

The Governor’s plan sunsets the state forestry mill tax, or “forestation state tax,” effective with the January 1, 2017, property tax assessments (property taxes levied in 2017, for payment in 2018).

UW System Tuition Reduction ($35 million)

The Governor’s plan provides $35 million in new funding to reduce tuition at UW System schools in 2018.

WIB Announces New Member Service

We are pleased to announce a new free service available to members. Through a partnership with our WIB Health Care Benefits Consultant, members can now subscribe to our monthly “E-HR” electronic newsletter.

Our E-HR publication is intended to provide members with the latest information on new federal human resources-related laws and regulations which may apply to small, independent businesses. In each edition, members can access “compliance bulletins” which outline the change in federal law or regulation and an action plan for members to follow.

The first edition will be published on April 1 and thereafter on the first of the month. If you would like to receive our new E-HR publication, please contact Brian Dake toll-free at 1-800-362-9644 or via e-mail to