108.04 AnnotationMisconduct under sub. (5) is the intentional and substantial disregard of an employer’s interests. The crucial question is the employee’s intent or attitude that attends the conduct alleged to be misconduct. Bernhardt v. LIRC, 207 Wis. 2d 292, 558 N.W.2d 874 (Ct. App. 1996), 95-3549.

108.04 AnnotationTo be entitled to benefits under sub. (7) (am), there must be an identifiable, threatened suspension or termination of another employee’s work and not just a response to separation incentives offered by the employer as a cost-cutting measure. Berry v. LIRC, 213 Wis. 2d 397, 570 N.W.2d 610 (Ct. App. 1997), 97-0260.

108.04 AnnotationThe definition of “employer” under sub. (10) (d) does not include an employer joined or associated with another for the purpose of collective bargaining who is not subject to a strike against the other employer. Brauneis v. LIRC, 2000 WI 69, 236 Wis. 2d 27, 612 N.W.2d 635, 98-2212.

108.04 AnnotationThe Labor and Industry Review Commission could reasonably decide that an employee’s physical assault of another employee in reaction to discriminatory, harassing comments of a non-physical nature was misconduct under sub. (5) even though the employer may have failed to properly respond to the employee’s past complaints. Lopez v. LIRC, 2002 WI App 63, 252 Wis. 2d 476, 642 N.W.2d 561, 01-0165.

108.04 AnnotationTo demonstrate voluntary termination of employment for good cause under sub. (7) (b), the employee must show that the termination involved real and substantial fault on the part of the employer. Moving in violation of residency requirements of a collective bargaining agreement was inconsistent with continuation of an employer-employee relationship and constituted voluntarily termination of employment. That both the employee and the employee’s new spouse were subject to residency requirements that, if honored, would have prevented their living together was not “good cause” for termination. Klatt v. LIRC, 2003 WI App 197, 266 Wis. 2d 1038, 669 N.W.2d 752, 02-3218.

108.04 AnnotationThe appropriateness of establishing an off-duty work rule is determined at the time of the creation of the rule and not at the time of the violation of the rule. In this case, the employer and the union established a last chance agreement process to assist employees with drug and alcohol problems while providing a safe work environment for all employees. It was not relevant that the precipitating fact of the employee’s discharge was violating the employee’s last chance agreement without causing a safety-related incident. Patrick Cudahy Inc. v. LIRC, 2006 WI App 211, 296 Wis. 2d 751, 723 N.W.2d 756, 05-2074.

108.04 AnnotationAlthough the petitioner stated the petitioner was not quitting, the petitioner nonetheless refused to sign a document, knowing it would cause the petitioner’s termination. These circumstances are the epitome of conduct inconsistent with continuation of the employment relationship, and it must be held that the employee intended and did leave employment voluntarily under sub. (7) (a). It was reasonable for the Labor and Industry Review Commission to determine that a failure to sign an employee disciplinary form is never an automatic quit without good cause when signing would not constitute an admission of conduct, and that this situation always requires a good cause inquiry into whether the employee knew signing would not be an admission. Kierstead v. LIRC, 2012 WI App 57, 341 Wis. 2d 343, 817 N.W.2d 878, 11-0938.

108.04 AnnotationNothing in sub. (6) suggests that suspensions that are the result of conduct connected with the employee’s work are excluded from the requirements of sub. (6) while awaiting the conclusion of pending investigations or hearings. Although “good cause” is not defined in the statute, the term has a commonly understood meaning, which is “a legally sufficient reason.” Under sub. (6), an employer’s reasons for suspending an employee must involve specific conduct by the employee that is directly connected to the employee’s work. Milwaukee County v. LIRC, 2014 WI App 55, 354 Wis. 2d 162, 847 N.W.2d 874, 13-1613.

108.04 AnnotationUnder sub. (5g), an employee who has not committed misconduct may nevertheless be ineligible for unemployment compensation. When an employee’s conduct does not rise to the level of misconduct, the employee may be denied unemployment benefits if the employee is terminated for substantial fault. The burden is on the employer to show that the termination is due to the employee’s substantial fault. Operton v. LIRC, 2017 WI 46, 375 Wis. 2d 1, 894 N.W.2d 426, 15-1055.

108.04 AnnotationSub. (5g) (a) 1. provides that one or more minor infractions do not constitute substantial fault unless an infraction is repeated and the employer has previously warned the employee about the infraction. Under sub. (5g) (a) 2., an employee’s termination is not for substantial fault if the termination results from one or more inadvertent errors. Inadvertence is defined as “an accidental oversight; the result of carelessness.” An employer’s warning is not dispositive of whether errors are inadvertent, and multiple inadvertent errors, even if the employee has been warned, do not necessarily constitute substantial fault. Operton v. LIRC, 2017 WI 46, 375 Wis. 2d 1, 894 N.W.2d 426, 15-1055.

108.04 AnnotationThe plain language of sub. (5) (e) allows an employer to adopt its own absenteeism policy that differs from the policy set forth in sub. (5) (e). Termination of an employee for a 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 sub. (5) (e). DWD v. LIRC, 2018 WI 77, 382 Wis. 2d 611, 914 N.W.2d 625, 16-1365.

108.04 AnnotationThe denial of unemployment compensation to a Jehovah’s Witness who quit a job due to religious beliefs was a violation of the right to free exercise of religion. Thomas v. Review Board, 450 U.S. 707, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981).

108.05(1)(r)(r) Except as provided in s. 108.062 (6) (a), each eligible employee shall be paid benefits for each week of total unemployment that commences on or after January 5, 2014, at the weekly benefit rate specified in this paragraph. Unless sub. (1m) applies, the weekly benefit rate shall equal 4 percent of the employee’s base period wages that were paid during that quarter of the employee’s base period in which the employee was paid the highest total wages, rounded down to the nearest whole dollar, except that, if that amount is less than $54, no benefits are payable to the employee and, if that amount is more than $370, the employee’s weekly benefit rate shall be $370 and except that, if the employee’s benefits are exhausted during any week under s. 108.06 (1), the employee shall be paid the remaining amount of benefits payable to the employee under s. 108.06 (1). The department shall publish on its Internet site a weekly benefit rate schedule of quarterly wages and the corresponding weekly benefit rates as calculated in accordance with this paragraph.

108.05(1m)(1m) Final payments in certain cases. Whenever, as of the beginning of any week, the difference between the maximum amount of benefits potentially payable to an employee, as computed under this section and s. 108.06 (1), and the amount of benefits otherwise payable to the employee for that week is $5 or less, the benefits payable to the employee for that week shall be that maximum amount.

108.05(3)(a)(a) Except as provided in pars. (c), (d) and (dm) and s. 108.062, if an eligible employee earns wages in a given week, the first $30 of the wages shall be disregarded and the employee’s applicable weekly benefit payment shall be reduced by 67 percent of the remaining amount, except that no such employee is eligible for benefits if the employee’s benefit payment would be less than $5 for any week. For purposes of this paragraph, “wages” includes any salary reduction amounts earned that are not wages and that are deducted from the salary of a claimant by an employer pursuant to a salary reduction agreement under a cafeteria plan, within the meaning of 26 USC 125, and any amount that a claimant would have earned in available work under s. 108.04 (1) (a) which is treated as wages under s. 108.04 (1) (bm), but excludes any amount that a claimant earns for services performed as a volunteer fire fighter, volunteer emergency medical services practitioner, or volunteer emergency medical responder. In applying this paragraph, the department shall disregard discrepancies of less than $2 between wages reported by employees and employers.

108.05(3)(c)(c) Except when otherwise authorized in an approved work-share program under s. 108.062, a claimant is ineligible to receive any benefits for a week in which one or more of the following applies to the claimant for 32 or more hours in that week:

108.05(3)(d)(d) A claimant is ineligible to receive benefits for any week in which the claimant conceals holiday pay, vacation pay, termination pay, or sick pay as provided in s. 108.04 (11) (a) or wages or hours worked as provided in s. 108.04 (11) (b).

108.05(3)(dm)(dm) Except when otherwise authorized in an approved work-share program under s. 108.062, a claimant is ineligible to receive any benefits for a week if the claimant receives or will receive from one or more employers wages earned for work performed in that week, amounts treated as wages under s. 108.04 (1) (bm) for that week, sick pay, holiday pay, vacation pay, termination pay, bonus pay, back pay, or payments treated as wages under s. 108.04 (12) (e), or any combination thereof, totalling more than $500.

108.05(3)(e)(e) For purposes of this subsection, a bonus or profit-sharing payment is considered to be earned in the week in which the bonus or payment is paid by the employer. A bonus or profit-sharing payment is considered to be paid on the date of the check if payment is made by check, on the date of direct deposit by the employer at a financial institution if payment is deposited by the employer to an employee’s account at a financial institution, or on the date that the bonus or payment is received by the employee if any other method of payment is used.