On Friday, the Indiana Court of Appeals decided an unemployment benefits case of interest to me primarily because it contradicts a Court of Appeals decision from a couple of months ago. Beckingham v. Review Board of the Indiana Dept. of Workforce Development and Cenevo Corp. concerns the discharge of a woman under a “no fault” attendance policy. Basically, the employer says, in effect, we don’t much care why you weren’t at work, if you rack up so many unexcused absences, we’ll fire you. In terms of whether a person discharged under such a policy is entitled to unemployment benefits, this implicates IC 22-4-15-1(d)(2)-(3).
“Discharge for just cause” as used in this section is defined to include but not be limited to . . . (2) knowing violation of a reasonable and uniformly enforced rule of an employer; [or] (3) unsatisfactory attendance, if the individual cannot show good cause for absences or tardiness[.]
An employee “discharged for just cause” is not entitled to unemployment benefits. The question in this case is whether an employee that is discharged under a no-fault attendance policy (satisfying clause 2) but who has a good excuse for her absences (not satisfying clause 3) can be said to have been “discharged for just cause.” Today’s decision looked at the disjunctive “or” in the statute and concluded that they can. In January, a different panel of the Court of Appeals reached the opposite conclusion in Giovanoni v. Review Board.
I think you really have to strain at the text of the statute to reach the conclusion of the Giovanoni panel of the Court of Appeals. Not only do you have the disjunctive “or” making either a policy or unjustified absences independent bases for discharge with cause, you also have the initial text stating that the list of discharges for cause is not exhaustive. My own experience dealing with the Department of Workforce Development leaves me with the feeling that the Department of Workforce Development and to a lesser extent, the courts, really try to err in favor of giving terminated workers unemployment benefits. While I sympathize with the sentiment, I think that to do so in this case, where the employer had an attendance policy and the employee clearly violated the attendance policy, would require a very strained interpretation of some reasonably clear statutory language.
Incidentally, in Friday’s decision, you could tell fairly early on that the Court of Appeals was going to split with itself. Frequently, when referencing a prior decision, the Court of Appeals will refer to “this court.” However, this time, they referred to “a panel of this Court” which gives away that the author of the decision didn’t think the prior decision was properly decided.
“Basically, the employer says, in effect, we don’t much care why you weren’t at work, if you rack up so many unexcused absences, we’ll fire you.”
Doug —
Just to clarity, the employer in this case had an attendance policy that if an employee racked up so many EXCUSED absences, they could be fired. In that case, the record showed that Ms. Beckingham racked up too many excused absences due to her own personal illness and due to the illnesss of her two young children. Every single one of her absences had been excused by her employer.
The employer’s attandance policy recognized the following as “excused” absences:
Hospital confinement
Injury on the job
Jury duty
Pre-arranged absence authorized in writing, in advance
Military obligations
Beravement leave as authorized by this handbook
Serious illness or injury of a member of hte employee’s immediate family
Personal leave of absence authorized in writing, in advance
Personal illness or injury
Approved FMLA absences
Disaster directly affecting the employee or his/her immediate family (i.e. fire, flood, tornado)
Child care emergencies or other family emergencies.
However, these were distincations without difference. Once an employee racked up 13 “EXCUSED” absences (and without regard to whether the absences were excused), the employee was terminated.
So do you still feel that Ms. Beckingham should be denied unemployment benefits because she violated her employer’s attendance policy?
“While I sympathize with the sentiment, I think that to do so in this case, where the employer had an attendance policy and the employee clearly violated the attendance policy, would require a very strained interpretation of some reasonably clear statutory language.”
What about the clear statutory language that says that the employer’s policy must be “reasonable”? Do you feel that her employer’s no-fault attendance policy was “reasonable”?
I think it’s reasonable for an employer to draw some sort of line at which even “excused” absences are not allowed. The employer needs its employees to be available to work even if the employee’s reasons for being unavailable are noble and unblameworthy.
Doug,
We live in an “at will” state. An employer can fire someone for whatever reason they want — including too many excused absences. Employers can fire someone if they don’t like an employee’s purple jersey or if they think that their lipstick is too bright. I am not saying that employers cannot or should not be able to fire an employee for too many excused absences. I understand that employers need its employees to be available for work.
However, when an employee has to miss work for legitimatae reasons, including illnesses, jury duty, family emergencies, death of a close family member, military duty, or other things that they don’t really have much control over, those emplioyees should not later be denied unemployment benefits because they violated an employer’s attendance policy.
The Unemployment Compensation Act was put into place to “provide for the payment of benefits to persons who become unemployed through no fault of their own.”
Sounds to me like what you’re arguing for is for the legislature to amend subdivision (2) to require the employee to be at fault for the violation before it applies. Because I think an employer can have a reasonable rule that can be transgressed by an employee through no fault of either employer or employee.
Incidentally, the Supreme Court has agreed to take this case and the Giovanni case up on transfer. Oral arguments (per the Indiana Law Blog) are to take place next week.