SHIRLEY S. ABRAHAMSON, J.
¶ 1 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). 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 employers absenteeism rules need not be consistent with the statutes definition of misconduct based on absenteeism; and that an employees violation of the employers absenteeism rules constitutes misconduct under § 108.04(5)(e) barring unemployment compensation benefits.
¶ 3 In contrast, the court of appeals concluded that an employee who is terminated for violating an employers absenteeism rules is not barred from obtaining unemployment compensation benefits unless the employees conduct violates the statutory definition of misconduct based on absenteeism. The court of appeals also concluded that an employee cannot be denied unemployment compensation benefits for violating an employers 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 employers policy results in disqualification for unemployment compensation benefits even if the employers policy is more restrictive on the employee?
¶ 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 employers absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employers policy is more restrictive than the absenteeism policy set forth in the statute. Beres was terminated for not complying with her employers absenteeism policy. Accordingly, we conclude that Beres was properly denied benefits.
I
¶ 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 employers 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 employers 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. Beress employer terminated her employment three days later because of her violation of the employers 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 employers 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 DWDs decision to the Labor and Industry Review Commission (LIRC). LIRC reversed the decision of DWD, concluding that an employee is not disqualified from obtaining unemployment compensation benefits when the employee is terminated for violating an employers 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 employers 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 LIRCs decision, adopting DWDs 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 employers policy constitutes misconduct under the statute resulting in a terminated employees disqualification from obtaining unemployment compensation benefits. In the instant case, the employers policy (of which Beres acknowledged receipt with her signature) was that during an employees probationary period, a single instance of an employees 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 employers absenteeism policy is termination for misconduct and renders the terminated employee ineligible for unemployment compensation benefits.
¶ 11 LIRC appealed to the court of appeals. The court of appeals adopted LIRCs 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 employers 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 employers 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 LIRCs 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. 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 LIRCs 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 employers policy will result in disqualification from receiving unemployment compensation benefits even if the employers 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 employees 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 employees 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.
¶ 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 employees 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 for Dane County, 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 employees termination, except if the employee violates his or her employers absenteeism policy 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 employees falsifying business records of the employer is misconduct [u]nless the falsification is directed by an employees 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, 785 N.W.2d 462.
¶ 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 employers 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 employers 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, Beress 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 employers policy when she missed an entire shift without providing her employer notice of the absenteeism. Under these circumstances, Beress violation of her employers written absenteeism policy 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.
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:
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 employees 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).
No one disputes that the employers 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.
DWD v. LIRC, 2017 WI App 29, 375 Wis. 2d 183, 895 N.W.2d 77.
Because resolving this issue implicates the authoritativeness of an administrative agencys 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, 382 Wis. 2d 496, 914 N.W.2d 21. 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 agencys experience, technical competence, and specialized knowledge as the court considers the agencys arguments. The courts Tetra Tech opinion contains our analysis of the deference issue, which we incorporate and apply in the instant case.
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, 1 Cranch 137, 2 L.Ed. 60 (1803) ).