One, Two, Three Strikes You’re OUT… When Dealing With Attendance Rules!

I bet I got you humming "Take Me Out to the Ball Game" and now it’s going to be stuck in your head, like "It’s a Small World." Sorry, that was just mean. 

In this article, I am talking about attendance rules and not ball games. Yep, the dreaded absenteeism issue. But, for a change, I am here with some good news for employers. The case is Wilson v Meijer Great Lakes Ltd Partnership and Unemployment Insurance Agency.

You know the defendant and probably have shopped at its stores. I know I do, and I appreciate that it is well-staffed with team members, so you can get help in a department and not wait in long lines at the checkout. But for this to work, team members have to show up or, at the very least, let their employer know when they can’t so coverage can be arranged. That takes us to our case and a termination that occurred back in 2017.

Leonard Wilson was unable to report to work as scheduled on five consecutive days: Sept. 4 through Sept. 8, 2017. Perhaps I am getting a little jaded after 30 years as an employment defense attorney, but right away I had to look to confirm that this was Labor Day and the three days that followed. It was and Wilson only called in on Sept. 5 and did so only after the start of his shift.

My first thought was he was living the wild-life, or he was arrested. Turns out both may have been true because he had been arrested on a narcotics charge and was in jail.

Fortunately for Meijer, it had a no call/no show policy that terminates employees after three such days. Its policy also required employees to give notice to leadership of an absence no less than 60 minutes before the start of their shift. Wilson violated the policy and was terminated.

Wilson sought unemployment benefits, but he was determined (and then redetermined) to be ineligible because of the no call/no show which “shall be considered” a voluntary resignation and was for reasons (incarceration) unattributable to Meijer. Wilson lost again at the agency before the administrative law judge, lost his appeal before the Michigan Compensation Appellate Commission, lost another appeal by right to the Ingham County Circuit Court and was denied leave initially by the Michigan Court of Appeals.

Undaunted, Wilson then appealed to the Michigan Supreme Court which remanded the case back to the Court of Appeals for consideration “as on leave granted.” That is where our story picks up with, unfortunately a lot of legal fees paid by Meijer (which did nothing wrong) and no unemployment received by Wilson after his pursuit of frivolous appeals.

The appellate court focused on statutory interpretation which is always amusing: the word “shall” is mandatory. No argument here. The humor begins with the interpretation of the word “considered.” It is like arguing what the meaning of “is” is. Flashback to the 90s. 

The appellate court explained that the word consider means “to ‘think about carefully,’ to regard or treat in an attentive or kindly way,’ or ‘to gaze on steadily or reflectively.’… ‘to come to judge or classify.’” Thankfully, the court landed on the last one because if it had chosen “to treat…in a kindly way” the case may have come out differently. Thus, the appellate court found that “the ‘no show, no call’ provision of MCL 421.29(1)(a) is, in essence, a definition of one instance where an individual is, as a matter of law, deemed to have voluntarily left work without good cause.”

Wilson relied on several older cases, all of which interpreted the statute before the enactment of the language that was applicable to his termination in 2017, and he argued that based on the policy purpose of the law (to provide financial assistance to those who become unemployed) it should be liberally construed. The appellate court was not having any of his arguments, explaining that statutory construction requires an interpretation that is consistent with the plain language and the judiciary cannot rewrite the statute.

I am not doing a deep dive into the details because the statute was revised in December 2020 and it is probably more important to provide you with the current language which states:

  (1) Except as provided in subsection (5), an individual is disqualified from receiving benefits if he or she:

(a) Left work voluntarily without good cause attributable to the employer or employing unit. An individual who left work is presumed to have left work voluntarily without good cause attributable to the employer or employing unit. An individual who is absent from work for a period of 3 consecutive work days or more without contacting the employer in a manner acceptable to the employer and of which the individual was informed at the time of hire is considered to have voluntarily left work without good cause attributable to the employer. 

MCL 421.29 (emphasis added). So, it is key for employers to provide employees with the relevant information at the time of hire! Keep in mind, you can have a policy stating that even one day of no call/no show results in discharge (absent an acceptable unusual circumstance in the employer’s sole discretion). I usually recommend the one instance because I have found that incarceration seems to be the number one cause for the no call/ no show, given that inmates usually use their one free call for a lawyer (or to family). Of course, an acceptable unusual circumstance would include an employee who is comatose and incapable of calling work. But keep in mind , the employee fired for only one no call/no show may be able to draw unemployment.

You may be interested in a couple of additional reasons in Section 29 of the Act because details matter:

  1. “An individual who becomes unemployed as a result of negligently losing a requirement for the job of which he or she was informed at the time of hire is considered to have voluntarily left work without good cause attributable to the employer.”
  2. “An individual claiming to have left work involuntarily for medical reasons must have done all of the following before the leaving:
    • secured a statement from a medical professional that continuing in the individual's current job would be harmful to the individual's physical or mental health,
    • unsuccessfully attempted to secure alternative work with the employer, and
    • unsuccessfully attempted to be placed on a leave of absence with the employer to last until the individual's mental or physical health would no longer be harmed by the current job.”

Id. The “negligently losing a requirement” often involves a driver’s license or a professional license or certification. The medical reason’s caveats are interesting. Make sure you mention to unemployment the employee’s “failures” to satisfy the Act’s requirements if applicable (i.e., never obtained the doctor’s note we requested, never asked for another position, never requested another extension of their leave). 

As you can see, an employer can follow the law and still be dragged into years of litigation by a relentless former employee. Thankfully, this saga is coming to an end. One final point, the Act was also amended to include various exceptions to the above medical related rules when connected to COVID-19 (for weeks beginning before April 1, 2021) and allows for unemployment benefits.

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