Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance

Subject: Milwaukee County v. LIRC and Kimberly D. Carrington-Field, Case No. 12-CV-12833 (Wis. Cir. Ct. Milw. Co., June 4, 2013)
      and Milwaukee County v. LIRC and Elletra Webster, Case No. 12-CV-12833 (Wis. Cir. Ct. Milw. Co., June 4, 2013) (consolidated cases)

Digest code: MC 676.1 - Suspension, disciplinary - General

The employees were two sheriff deputies who were suspended pending a Personnel Review Board hearing after an investigation by the sheriff lead him to recommend they be discharged for failures in job performance. The commission's decisions (Carrington-Field, Webster) found that the employees were eligible for UI despite Wis. Stat. � 108.04(6), as that statute only applies to "disciplinary suspensions," and the suspensions pending a hearing by the Personnel Review Board were not a disciplinary suspensions.

Appeal was taken to the Circuit Court.

HELD: Affirmed.

The court first concluded that great weight deference applied to the commission's application and interpretation of Wis. Stat. � 108.04(6). The commission then turned to the employer's main argument which was that the actual text of the statute does not limit its application to disciplinary suspensions, but rather suspensions for "good cause connected with the employee's work," and that use of the term "disciplinary suspension" in the title of the subsection cannot be read into the subsection's unambiguous text.

However, the court agreed with the commission's argument that the term "good cause connected with the employee's work" is ambiguous on its face and when read in context with the rest of Wis. Stat. � 108.04. It noted that if the term "good cause connected with the employee's work" in Wis. Stat. � 108.04(6) were not limited to disciplinary suspensions but read more broadly, the statute would conflict with more specific statutes (Wis. Stat. � 108.04(1)(b)1 and (f)) that also provide for benefit eligibility (though for different periods) in other situations involving suspensions for "good cause". Finding the statute ambiguous, the court concluded it was appropriate to look to its title and legislative history for meaning, and determined the commission reasonably interpreted Wis. Stat. � 108.04(6) to be limited to disciplinary suspensions even after the statute had been amended to remove the word "disciplinary" from the statutory text.

The court went on to address whether the suspension were disciplinary. It concluded they were not, as suspensions pending hearing by the Personnel Review Board are not corrective action or punishment, but are done to separate employees from employment until an administrative body could evaluate the sheriff's disciplinary recommendation. The court noted the commission past decisions which distinguished between "proactive/investigative" suspensions and "corrective/disciplinary" suspensions. It noted also that if the initial suspension was a disciplinary suspension, there would be no point to action by the Personnel Review Board and that Wis. Stat. � 59.52(8)(b) requires a Board determination of just cause for discipline

Appealed to the Court of Appeals.  Reversed, Milwaukee Co. v. LIRC, Carrington-Field, and Webster, 2014 WI App 55, 354 Wis. 2d 162, 847 N.W.2d 874.

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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