                                                               2018 WI 77

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2016AP1365
COMPLETE TITLE:         Wisconsin Department of Workforce Development,
                                   Plaintiff-Respondent-Petitioner,
                             v.
                        Wisconsin Labor and Industry Review Commission,
                                   Defendant-Appellant,
                        Valarie Beres and Mequon Jewish Campus, Inc.,
                                   Defendants.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 375 Wis. 2d 183, 895 N.W.2d 77
                               PDC No: 2017 WI App 29 - Published

OPINION FILED:          June 26, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          December 1, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Ozaukee
   JUDGE:               Sandy A. Williams

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the plaintiff-respondent-petitioner, there were briefs
filed by Ryan J. Walsh, chief deputy solicitor general, Brad D.
Schimel,      attorney general,       Misha Tseytlin,    solicitor general,
and Kevin M. LeRoy, deputy solicitor general.                There was an oral
argument by Ryan Walsh.


       For the defendant-appellant, there was a brief filed by
Jeffrey      J.     Shampo   and   Wisconsin   Labor   and    Industry   Review
Commission, Madison.          There was an oral argument by Jeffrey J.
Shampo.
    There   was   an    amicus   curiae   brief    filed   on   behalf   of
Wisconsin   Institute   for   Law   &   Liberty,   Inc.    by   Thomas   C.
Kamenick, Richard M. Esenberg, and Wisconsin Institute for Law &
Liberty, Inc., Milwaukee.




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                                                                    2018 WI 77
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2016AP1365
(L.C. No.    2015CV358)

STATE OF WISCONSIN                        :            IN SUPREME COURT

Wisconsin Department of Workforce Development,

              Plaintiff-Respondent-Petitioner,

      v.
                                                                 FILED
Wisconsin Labor and Industry Review Commission,
                                                            JUN 26, 2018
              Defendant-Appellant,
                                                               Sheila T. Reiff
Valarie Beres and Mequon Jewish Campus, Inc.,               Clerk of Supreme Court


              Defendants.




      REVIEW of a decision of the Court of Appeals.            Reversed.


      ¶1      SHIRLEY S. ABRAHAMSON, J.       Valerie Beres was denied

unemployment compensation benefits on the ground that she was

terminated for engaging in "misconduct" as an employee, namely

absenteeism, as defined by Wis. Stat. § 108.04(5)(e) (2015-16).1
      1
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.

     The governing statute, Wis. Stat. § 108.04(5)(e), reads as
follows:
                                                     (continued)
                                                                    No.   2016AP1365



The statute sets forth the circumstances in which absenteeism

will constitute "misconduct" barring unemployment compensation

benefits.

     ¶2     The Ozaukee County Circuit Court, Sandy A. Williams,

Judge,    adopted   the     position    of       the   Department   of    Workforce

Development that the plain language of Wis. Stat. § 108.04(5)(e)

allows an employer to adopt its own rules regarding employee

absenteeism; that the employer's absenteeism rules need not be

consistent with the statute's definition of "misconduct" based

on   absenteeism;     and     that     an       employee's   violation     of   the




     Sec. 108.04.     Eligibility for benefits.

            . . . .

          (5) Discharge for misconduct.   An employee whose
     work is terminated by an employing unit for misconduct
     by   the   employee . . . is  ineligible   to  receive
     benefits . . . . "[M]isconduct" includes:

            . . . .

          (e) 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, or excessive tardiness by an
     employee in violation of a policy of the employer that
     has been communicated to the employee, if the employee
     does not provide to his or her employer both notice
     and one or more valid reasons for the absenteeism or
     tardiness.

Wis. Stat. § 108.04(5)(e) (emphasis added).


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                                                                           No.    2016AP1365



employer's      absenteeism      rules     constitutes              "misconduct"        under

§ 108.04(5)(e) barring unemployment compensation benefits.2

     ¶3       In contrast, the court of appeals concluded that an

employee      who   is    terminated           for     violating          an     employer's

absenteeism     rules    is     not   barred     from        obtaining         unemployment

compensation benefits unless the employee's conduct violates the

statutory definition of "misconduct" based on absenteeism.3                               The

court    of   appeals    also    concluded       that        an    employee      cannot    be

denied     unemployment       compensation           benefits       for    violating       an

employer's      absenteeism      policy        that     is        "stricter"     than     the

absenteeism policy set forth in the statute.

     ¶4       The single issue presented to the court is as follows:

Does Wis. Stat. § 108.04(5)(e) allow an employer to adopt an

attendance     or   absenteeism       policy     that        differs      from    that    set

forth in § 108.04(5)(e) such that termination of an employee for

violating the employer's policy results in disqualification for




     2
       No one disputes that the employer's absenteeism policy in
the instant case was contained in an employment manual of which
the employee has acknowledged receipt with her signature as
required by the statute.
     3
       DWD     v.   LIRC,     2017    WI   App        29,     375     Wis. 2d 183,        895
N.W.2d 77.


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                                                                 No.     2016AP1365



unemployment compensation benefits even if the employer's policy

is more restrictive on the employee?4

      ¶5     We   conclude    that   the    plain   language    of     Wis.    Stat.

§ 108.04(5)(e) allows an employer to adopt its own absenteeism

policy that differs from the policy set forth in § 108.04(5)(e),

and   that    termination      for   the    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 the statute.              Beres was terminated for not

complying with her employer's absenteeism policy.                    Accordingly,

we conclude that Beres was properly denied benefits.

                                        I




      4
       Because    resolving   this    issue    implicates    the
authoritativeness of an administrative agency's interpretation
and application of a statute, we asked the parties to address
the following issue: "Does the practice of deferring to agency
interpretations of statutes comport with Article VII, Section 2
of the Wisconsin Constitution, which vests the judicial power in
the unified court system?"

     We heard arguments in the instant case on the same day that
we heard Tetra Tech EC, Inc. v. Department of Revenue, 2018 WI
75, ___ Wis. 2d ___, ___ N.W.2d ___.       The Tetra Tech court
decided to end the practice of deferring to administrative
agencies' conclusions of law.     However, the Tetra Tech court
also said that, pursuant to Wis. Stat. § 227.57(10), courts will
give "due weight" to an administrative agency's experience,
technical competence, and specialized knowledge as the court
considers the agency's arguments.       The court's Tetra Tech
opinion contains our analysis of the deference issue, which we
incorporate and apply in the instant case.


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                                                                        No.     2016AP1365



       ¶6     For    purposes     of   deciding    the     issue    presented,          the

facts are brief and undisputed.                  Valerie Beres, a registered

nurse, was employed by Mequon Jewish Campus.                       Beres had signed

her    employer's       written    attendance      policy    providing          that     an

employee in his or her probationary period may have his or her

employment terminated if, in a single instance, the employee

does not give the employer advance notice of an absence.                                The

employer's policy was that an employee must "call in 2 hours

ahead of time" if the employee was unable to work his or her

shift.

       ¶7     In    the     instant     case,    Beres     was     in     her     90-day

probationary period when she did not come to work due to "flu-

like symptoms."            She did not communicate with her employer two

hours prior to the beginning of her shift to inform her employer

that she was sick and that she was unable to work her shift.

Beres's      employer      terminated    her    employment       three    days        later

because of her violation of the employer's absenteeism policy.

       ¶8     Beres    filed    for    unemployment      compensation          benefits.
The Department of Workforce Development (DWD) denied benefits on

the ground that when Beres violated her employer's written "No

Call    No   Show"     attendance      policy,    she    committed       "misconduct"

under    Wis.      Stat.     § 108.04(5)(e).        This    statutory          provision

addresses           when       absenteeism        constitutes            "misconduct"

disqualifying a terminated employee from obtaining unemployment

compensation benefits.

       ¶9     Beres     appealed       DWD's    decision    to     the        Labor    and
Industry Review Commission (LIRC).                 LIRC reversed the decision
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of DWD, concluding that an employee is not disqualified from

obtaining unemployment compensation benefits when the employee

is terminated for violating an employer's absenteeism policy if

that policy is more restrictive than the "2 in 120" day standard

provided by Wis. Stat. § 108.04(5)(e).                      LIRC determined that

Beres did not commit "misconduct" because although she violated

her   employer's          "stricter"    absenteeism        policy,    she     did    not

violate the "2 in 120" day statutory standard.                         Accordingly,

LIRC held that Beres was entitled to unemployment compensation

benefits.       DWD appealed to the circuit court.

      ¶10       The circuit court reversed LIRC's decision, adopting

DWD's interpretation of Wis. Stat. § 108.04(5)(e):                      An employer

may, in a written employment manual signed by the employee, set

forth its own policy regarding absenteeism, and a violation of

the employer's policy constitutes "misconduct" under the statute

resulting        in   a    terminated    employee's        disqualification         from

obtaining unemployment compensation benefits.                        In the instant

case, the employer's policy (of which Beres acknowledged receipt
with her signature) was that during an employee's probationary

period,     a    single     instance    of       an   employee's    absence    without

notification to the employer would result in termination.                            In

other words, the employer commanded that a single "No Call No

Show" would result in termination.                      According to the circuit

court,      under     § 108.04(5)(e),        termination      for    violating      the

employer's absenteeism policy                is termination        for "misconduct"

and renders the terminated employee ineligible for unemployment
compensation benefits.
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                                                                     No.     2016AP1365



       ¶11    LIRC appealed to the court of appeals.                 The court of

appeals        adopted     LIRC's        interpretation        of     Wis.         Stat.

§ 108.04(5)(e),        holding    that    an   employee   is   not    disqualified

from       obtaining   unemployment       compensation     benefits         when    the

employee      violates    an     employer's     absenteeism     policy       if    that

policy is "stricter" than the "2 in 120" day standard provided

by § 108.04(5)(e).          The court of appeals concluded that Beres

did not commit "misconduct" because although she violated her

employer's "stricter" absenteeism policy, she did not violate

the "2 in 120" day standard under the statute.

                                          II

       ¶12    The instant case requires this court to determine the

validity of LIRC's order interpreting and applying Wis. Stat.

§ 108.04(5)(e).          The court may set aside an order of LIRC if

LIRC acted "without or in excess of its powers."                           Wis. Stat.

§ 108.09(7)(c)6.a.         It is the province and duty of the judiciary

to say what the law is.5            Because we determine that LIRC based

its order on an incorrect interpretation of § 108.04(5)(e), we
conclude that LIRC acted without or in excess of its powers.

       ¶13    In contrast to LIRC's interpretation of the statute,

we conclude that the text of Wis. Stat. § 108.04(5)(e) plainly

allows an employer to adopt its own attendance (or absenteeism)

policy that differs from the policy set forth in § 108.04(5)(e),

and termination for the violation of the employer's policy will

       5
       State v. Williams, 2012 WI 59, ¶36, 341 Wis. 2d 191, 814
N.W.2d 460 (citing Marbury v. Madison, 5 U.S. 137, 177 (1803)).


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                                                                No.     2016AP1365



result    in   disqualification           from      receiving    unemployment

compensation   benefits   even   if   the        employer's   policy    is   more

restrictive than the policy set forth in the statute.

                                  III

    ¶14   The governing statute is Wis. Stat. § 108.04(5)(e).

It states that "misconduct" includes an employee's absenteeism

if the employee is absent on more than 2 occasions within a

described 120-day period "unless otherwise specified by his or

her employer in an employment manual of which the employee has

acknowledged receipt with his or her signature."                      Wis. Stat.

§ 108.04(5)(e).     The governing statute reads as follows:

    Sec. 108.04.     Eligibility for benefits.

          . . . .

         (5) Discharge for misconduct.   An employee whose
    work is terminated by an employing unit for misconduct
    by   the   employee . . . is  ineligible   to  receive
    benefits . . . . "[M]isconduct" includes:

          . . . .

         (e) 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, or excessive tardiness by an
    employee in violation of a policy of the employer that
    has been communicated to the employee, if the employee
    does not provide to his or her employer both notice
    and one or more valid reasons for the absenteeism or
    tardiness.
Wis. Stat. § 108.04(5)(e) (emphasis added).               The key language,

the meaning of which the parties dispute, is the "unless" clause
emphasized above.

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                                                                  No.     2016AP1365



    ¶15     The statute is written in ordinary English and creates

a simple framework.       The text of Wis. Stat. § 108.04(5)(e) has

three main clauses relating to absenteeism.               Only the first two

clauses are relevant in the instant case.

    ¶16     First, the statute defines "misconduct" as including

absenteeism:      "[M]isconduct includes: . . . [a]bsenteeism by an

employee on more than 2 occasions within the 120-day period

before the date of the employee's termination."                         Wis. Stat.

§ 108.04(5)(e).

    ¶17     Second, the statute sets forth an "unless" clause in

defining "misconduct," including absenteeism.

    ¶18     The   word   "unless"    is   an   ordinary    word    in     everyday

language.    A helpful, but not dispositive, canon of statutory

interpretation is that words in a statute that have a common

meaning retain that common meaning in the statute.                      Wis. Stat.

§ 990.01(1); Bruno v. Milwaukee County, 2003 WI 28, ¶¶8, 20, 260

Wis. 2d 633, 660 N.W.2d 656 (cited with approval in State ex

rel. Kalal v. Circuit Court, 2004 WI 58, ¶45,               271 Wis. 2d 633,
681 N.W.2d 110).

    ¶19     The   word    "unless"    ordinarily     means        "except      if."

Replacing the word "unless" with the words "except if" where the

word "unless" appears in the statute may run into grammatical

issues, but it helps make the meaning of the statute clear:                      An

employee commits statutory "misconduct" by absenteeism if he or

she is absent on more than two occasions within the 120-day

period before the date of the employee's termination, except if
the employee violates his or her employer's absenteeism policy
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                                                                          No.   2016AP1365



that is specified "in an employment manual of which the employee

has    acknowledged    receipt     with    his    or     her    signature."           This

reading of the statute makes clear that an employer can opt out

of the statutory definition of "misconduct" by absenteeism and

set its own absenteeism policy, the violation of which will

constitute statutory "misconduct."

       ¶20   We can further test whether the word "unless" in Wis.

Stat. § 108.04(5)(e) means "except if" by replacing the word

"unless" used elsewhere in the statute with the words "except

if."     A general rule of interpretation is that the same word

used several times in a statute has the same meaning every time

it is used.        Bank Mut. v. S.J. Boyer Const., Inc., 2010 WI 74,

¶31, 326 Wis. 2d 521, 785 N.W.2d 462 ("When the same term is

used throughout a chapter of the statutes, it is a reasonable

deduction that the legislature intended that the term possess an

identical meaning each time it appears.").

       ¶21   For    example,     under     Wis.    Stat.       § 108.04(5)(f),          an

employee's     falsifying       business       records    of        the    employer      is
"misconduct"       "[u]nless"    the   falsification           is   "directed      by   an

employee's employer."           This provision can be restated to say

that an employee commits "misconduct" when he or she falsifies a

business record "except if" the employee is directed to do so by

his or her employer.        The word "unless" can also be replaced by

the words "except if" in § 108.04(5)(g).                  We therefore conclude

that the word "unless" in § 108.04(5) means "except if."                                See

Bank Mut., 326 Wis. 2d 521, ¶31.


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      ¶22    As an alternative argument, LIRC contends that Wis.

Stat.      § 108.04(5)(e)       disqualifies         a     former     employee           from

obtaining     unemployment       compensation            benefits    only        when     the

employee violates both the statutory "2 in 120" standard and an

employer's absenteeism policy.               This argument fails because it

rewrites the statute by striking and replacing the word "unless"

in the text of the statute with the word "and."                       These two words

are not synonymous with one another.                       Neither LIRC nor this

court can rewrite this statute to replace the word "unless" with

the word "and."

                                       * * * *

      ¶23    We     conclude    that   the    word       "unless"    in     the     "unless

otherwise specified" clause of Wis. Stat. § 108.04(5)(e) means

that an employee will be considered to have been terminated for

"misconduct," and thus disqualified from obtaining unemployment

compensation benefits, if the employee violates the statutory

definition of absenteeism, except if the employee adheres to the

employer's absenteeism policy specified in the employment manual
of   which    the    employee    acknowledged        receipt        with     his    or    her

signature in accordance with the statute.

      ¶24    In     the     instant    case,     Beres's        employer           has     an

absenteeism policy specified in its employment manual.                                  Beres

acknowledged receipt of this policy in the employment manual

with her signature.            Beres violated the employer's policy when

she missed an entire shift without providing her employer notice

of   the     absenteeism.          Under      these        circumstances,           Beres's
violation      of     her      employer's      written        absenteeism            policy
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                                                              No.     2016AP1365



constituted     "misconduct"   by   absenteeism       under      Wis.    Stat.

§ 108.04(5)(e), and Beres was properly denied the benefits at

issue.

    ¶25     For the reasons set forth, we reverse the decision of

the court of appeals.

    By    the   Court.—The   decision    of   the   court   of      appeals   is

reversed.




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