Unemployment Compensation Manual

:: Misconduct ::

CAVEAT: SPECIFIC LAWS AND REGULATIONS VARY WIDELY FROM STATE TO STATE. THESE ARE ONLY GENERAL REMARKS. UNEMPLOYMENT TAX ADVISORY CORPORATION DOES NOT RECOMMEND NOR ADVISE ANY MATERIAL CONDUCT ON THE BASIS OF THESE REMARKS. FOR ADVICE RELATING TO YOUR SPECIFIC CIRCUMSTANCES, CALL UTA AT 1 800 998 8822.
 

INTRODUCTION

Unemployment Compensation is intended to pay benefits to those who are involuntarily unemployed through no fault of their own. Workers who are discharged for misconduct connected with their work are unemployed through their own fault. For this reason, in most states, a worker who is discharged for misconduct is not eligible to receive unemployment compensation. (In some states, the disqualification may only last for a few weeks).

Of course, the Devil is always in the details. There are many, many circumstances under which a person may commit what, to the employer, is very clearly flagrant misconduct, and nevertheless collect unemployment. The puzzled employer wonders, how can this be?

It results from one of these causes:

  1. Semantics: The worker's misconduct does not fit the precise definition of misconduct which applies for unemployment compensation purposes.
  2. Non-Disqualifying Factors: The misconduct is combined with some other factor which does NOT disqualify the claimant from benefits.
  3. Reasonableness: The misconduct arises from rules or requirements which the state, in hindsight, deems unreasonable.
Semantics:
"Misconduct" can be defined as conduct on the part of the worker which shows such willful or wanton disregard of an employer’s interest that it deliberately violates those standards of behavior which the employer has the right to expect of his employee.
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"Misconduct" can also be negligence. If the worker is negligent to such a degree, or if his negligence recurs to such an extent, that it shows culpability, wrongful intent, or evil design, or shows an intentional disregard of the employer’s interests, then it may be misconduct.

On the other hand, mere inefficiency, or unsatisfactory conduct, or failure to perform up to employer expectations which the worker cannot meet, inadvertent mistakes, ordinary isolated instances of behavior, or good faith errors in judgment, are none of them "misconduct".

A stunning case of semantics over-riding common sense occurs in the "War Story" immediately below. We very strongly suggest you consult this War Story before assuming that your plain statement of the facts in an unemployment hearing will bring about a plain result.

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Non-Disqualifying Factors:
Employers often complain that the cards appear to be stacked against them. The cards appear stacked because they are stacked. Complaining of unfairness will not change the fact.
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State unemployment agencies are not in the business of looking for a qualifying reason why someone should collect unemployment. That is not their job. Nor are state agencies in the business of looking for a disqualifying reason why someone should not collect unemployment compensation. That is not their job. Well, if they are not looking for why someone should collect and they are not looking for why someone should not collect, what, then are they looking for?

If, among all the several reasons for dismissal, there can be found one factor which does not disqualify the claimant, then that factor will be regarded as the real cause of discharge, all other reasons will be ignored, and the claim will be paid. That's what they are looking for: a non-disqualifying factor. In plain talk, they are looking for a loophole to pay the claim.

This principle persists well after the initial determination. It carries through the appeal process and even applies in the courts. To demonstrate this, simply consult the Unemployment Compensation Case Law Database on this site. In every case, you will find the courts using such language as: "We find claimant was not disqualified from receiving unemployment benefits." No mention is made of whether the claimant ought not to collect. Neither is there mention of whether he should collect. It is strictly a matter of whether there is some reason in the record which does not disqualify him.

Here is a common example: A worker is discharged for repeated attendance problems, gross insubordination, and poor work performance. After all, these three faults are apt to travel in company. The employer states these three reasons for discharge. The attendance alone is disqualifying. The insubordination alone is disqualifying. But performance is not misconduct. Thus, the claim is paid.

Employers, when complaining about outrageous cases, tend to dwell on all the disqualifying factors in the case, but omit to mention the one non-disqualifying factor which they should never have lumped in with the rest.

An employer's best strategy is therefore not one which multiplies his arguments, but one which minimizes them; not everything but the kitchen sink, but one or two salient and convincing points which establish misconduct. These points must satisfy the definition of misconduct. But at the same time, they must not provide a non-disqualifying factor which will nullify the rest. For example:

  • Deliberate disregard of those standards of behavior which an employer has a right to expect of his employees.
  • Carelessness or negligence to such a degree that it is just as bad as deliberate disregard
  • Wrongful intent
  • Even if neither willful nor evil motives are involved, if the conduct is still sufficiently negligent that it shows an intentional and substantial disregard of the employer’s interests.

One of the commonest non-disqualifying factors occurs when an employer continues an employee after disqualifying behavior occurred. An excellent example of this is explained in the War Story immediately below.

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Work Related:
Conduct which the employer finds objectionable but which poses no harm or threat of harm to his business interests, may not be deemed misconduct. This stipulation frequently obtrudes a non-disqualifying factor into drug or alcohol related misconduct cases, especially where it occurred off-duty.

Generally, conduct, to be misconduct, must have occurred on the employer’s premises, during working hours, or in the course of the claimant’s work. However, conduct may still be connected to the work if it specifically jeopardizes an important interest of the employer, or if it is so notorious and scandalous that it significantly embarrasses the employer or compromises the employer’s public business image. Therefore, if the conduct is not connected with the work, nor on the premises, nor during working hours, nor does it jeopardize the employer's interests, nor is it scandalous, then it is not misconduct.

Reasonableness:
No matter what policy you promulgate, what steps you take, what procedures you follow, what evidence you heap up, or how egregious the misconduct may seem to you, the event will be measured against the standard: "Is is reasonable?". Time and again, the key word "reasonable" recurs to temper unemployment laws and regulations. Yet nothing is so subjective as what is reasonable. No definition whatever can lay hold of this slippery term.

The best guide to what will be judged "reasonable" is probably found in precedent. What has previously been held to be reasonable in your state by the state agency and the courts? Reasonable does not mean what is reasonable to you. reasonable means what is reasonable to the state. Reasonable does not mean that someone will pause to consider. Reasonable may merely mean that this is the way they have done it before.

Consider the "War Story" below.

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Right to Terminate:
The state agencies do not make direct judgments about the employer’s right to terminate; only about the claimant’s right to benefits. You may fire the guy or not. That's up to you. Whether you have to pay for it; that's up to them.
Statutes Supersede:
The effect of a violation by an employee of a rule established by an employer, insofar as it affects unemployment benefits, must be established, not by the employer's rules, but by the state statues. You have a right, even a duty, to make rules for the work place. The state has the right to let you know, after the fact, whether those rules are reasonable.
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EVIDENCE

Accumulated Circumstances:
A determination of misconduct may be made on the "accumulation of circumstances". Even though each separate incident of unacceptable conduct by the claimant may not have risen to the level of disqualifying misconduct if considered alone, the accumulation of such incidents together may amount to an "accumulation of circumstances" which constitute misconduct. An example of this might be frequent tardiness. Ten minutes late one morning may not constitute misconduct, but excessive chronic tardiness in the face of repeated warnings over time would. Where does repetition become surfeit? This is where interpretation comes in. Some states even number the repetitions allowed, and prescribe what must happen at each repetition.
Totality of Circumstancess:
The same conduct may or may not be deemed misconduct based on the "totality of circumstances". Even though unacceptable conduct may be disqualifying misconduct if considered alone, the circumstances of the incident may excuse it. An example of this might be intemperate remarks made by a store clerk in response to abusive behavior by a customer. Absent the abusive behavior, the same remarks may have been misconduct. Given the abusive behavior, they may be understandable.
Components:
The components which prove misconduct must include:

  1. The worker acted with willful or wanton disregard for the employer’s interests.
  2. The worker's act(s) significantly infringed on the employer's legitimate expectations.
Disciplinary History:
The worker’s past disciplinary history may be considered in determining whether the conduct which provoked a discharge entailed a willful and wanton disregard of the employer’s interests. This is why well-documented warnings are important. In some states, even the number of required warnings is fixed by state agency regulation.
Burden of Proof:
In misconduct cases, the responsibility for showing that the claimant should be disqualified from receiving benefits generally rests with the employer.

However, a failure by the employer to present evidence of misconduct does not automatically entitle a claimant to benefits. It is the duty of the state agency to act on evidence from any source. It is not uncommon for claimants, themselves, to provide evidence which disqualifies them.

On the other hand, as a practical matter, if the employer fails to respond to the state agency with evidence of misconduct, the matter will generally be dropped and worker will be granted benefits.

Standard of Evidence:
Unemployment compensation benefits are first decided by cursory claims determinations, then by administrative hearings. The determination requires very little evidence. The hearing requires "substantial" evidence. Substantial evidence means relevant evidence which a reasonable person might accept as sufficient to support a conclusion. Evidence is substantial if either all reasonable people would agree, or if some reasonable people would agree, as to whether it established a fact. Evidence is not substantial if reasonable people would all agree that it does not establish a fact.

Evidence both for and against the claimant’s eligibility must be considered.

Hearsay:
A decision disqualifying a claimant cannot be based upon hearsay alone if the claimant denies what is said. This does not always and in every state mean that hearsay evidence is inadmissible. It only limits its use in reaching a final decision.

Hearsay evidence is statements or evidence which the person testifying knows only indirectly from someone else, as opposed first-hand, personal knowledge. If the claimant admits to hearsay evidence, it can be used as proof. If the claimant does not deny it, and it is corroborated by other evidence, it can be used as proof.

Credibility:
Credibility of witnesses is an important factor. Unemployment cases frequently come down to "Yes you did" versus "No I didn't". It is up to the hearings officer to decide who to believe. If possible, credibility should be based on more than witness demeanor. Plausibility, consistency and corroborating evidence all go into credibility. The hearings officer should therefore question parties about inconsistent prior statements in the file.
Mistakes:
Evidence of misconduct must show conduct which is not an inadvertent mistake, nor an isolated example of poor judgment.
Incompetence:
Employers often discharge workers for what they consider to be incompetence. Unless the employer can show that the worker deliberately performed his duties incompetently, at a level of performance below his capabilities, and in willful disregard of his duty to the employer, misconduct has not been shown.
Relation of Offense to Discharge:
A claimant will be disqualified for misconduct connected with his work only if the misconduct is the actual and real cause for the claimant’s discharge. The employer should not look for a pretext to discharge a worker.
Recent Events:
The event which precipitated the discharge for misconduct should be recent. When an employer dredges up a past event to justify a present discharge, two bad things happen:

  1. The time which has passed between the alleged misconduct and the discharge implies that the employer has condoned the conduct.
  2. The relation between the alleged misconduct and the reason for discharge is called in question.

So an employer who wishes to discharge a worker for an unexcused absence should not wait two weeks before doing so. Also, the employer who wishes to discharge a worker for a theft he cannot prove should not assert an absence which occurred weeks earlier as the reason for discharge.

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COMMON SITUATIONS

There are a variety of situations in which the question of whether misconduct is present is not obvious and depends upon the situation and not only the worker’s motives.

Forced Resignations:
When a resignation is forced by the employer, the separation will be treated as a discharge instead of a quit. Typically, a forced resignation occurs when a worker resigns in lieu of being discharged, in order to protect his future employability. Therefore, "Quit or I'll fire you!" does not produce a quit; it produces a discharge.

Therefore, if a) the employer definitely intends to discharge the worker, and b) the worker would not have quit but for the employer's demand that he resign, then the employer must be prepared to prove misconduct and not rely upon the paper resignation.

On the other hand, many times a worker will quit because he thought he was about to be fired. If he did not receive an ultimatum, then it is a quit. Even if the foreman says: "I'm going to the office now and see to it that you are fired!", and while he's gone the worker leaves, that may be considered a quit, because he did not wait for formal notification that he was discharged.

Demotions:
Significant demotion may also be regarded as causing a forced resignation. Much depends upon the degree of the demotion and any accompanying pay decrease. None of this applies to strictly horizontal moves. Asking a tax clerk to assist in payroll for the same rate of pay is not the same as requiring the CFO to take the tax clerk's job at a third the salary.
Last Straw:
If a worker is discharged for a number of separate acts or for a pattern of conduct which shows a disregard for the employer’s interests, then the claimant may be found to have committed misconduct even though each separate act would not, standing alone, have amounted to misconduct. However, the "final incident" which provoked the discharge must itself be misconduct.

An example might be a worker who arrives late to work each and every morning with some flimsy excuse such as "I overslept". Finally, he comes in late one morning and is immediately discharged for poor attendance. But the reason he was late this on one particular morning, which the employer may impatiently never have enquired about, is a good one; perhaps he had a car wreck. Had the employer waited until the next "I overslept", then misconduct for the last straw in a long list of unexcused poor attendance incidents may have been established. But since the final incident had good excuse, the last straw does not apply.

In other words, the last straw must be a real straw.

The last straw principle generally will also generally not apply if:

  • The prior acts are too remote in time.
  • The prior acts have been condoned, forgiven, or resolved.

So if the worker in the example above were to arrange with the employer to stay late two hours to make up for a dozen ten-minute latenesses, and came in late the next morning, then his previous conduct has been purged and may not be used as a pattern of conduct.

Single Incidents:
A single incident of conduct in an otherwise good performance record which does not show a purposeful and substantial disregard for the employer’s interests will rarely be considered misconduct.

In other words, the employer cannot be "looking for something" to justify a misconduct, for instance in order to painlessly reduce his labor force or satisfy a personal animosity or accomplish some other errand, Likewise, the employer may not over-react to a single incident in an otherwise good work record.

This rule of thumb does not, however, mean that there must always be more than a single incident of misconduct in order to disqualify a worker. A single incident, especially of flagrant, outrageous, or serious conduct, which significantly infringes upon an employer’s legitimate business interests and expectations and is done with a willful or wanton disregard of those interests or expectations will be misconduct

Harm to the Employer’s Interests:
In order to establish misconduct, the evidence must generally show some harm, or potential harm, to the employer’s legitimate business interests. Conduct which is only a personal annoyance to the employer, or conduct which is protected as a matter of law or public policy, will not be considered misconduct.

As an example, a warehouseman who grows a ponytail may project an appearance which the employer finds objectionable but which does not harm the business.

An employer need not demonstrate actual harm in order to establish that a worker was discharged for misconduct. Misconduct can be found where the worker’s conduct creates a substantial risk of harm to the employer’s interests. What harm is there if there is a violation of the employer’s reasonable rules which are designed to protect legitimate employer expectations, but the actual harm which the rules were intended to avert did not occur?

  1. The violation threatens the credibility and enforceability of the employers rules if prompt disciplinary action is not taken, even though no other actual harm occurred.
  2. Failing to enforce the rules greatly increases the risks of the harm which the rule was designed to avoid.

An example might be a machinist who consistently lets his ponytail dangle. He may never himself have caught his hair in the machinery, but the employer's rule against dangling hair or clothing must be enforced if it is to ensure safe practices in the shop. The only way to show that the safe hair policy has "teeth" in it is to regard infractions of the rule as misconduct even where no dreadful cranial degloving thankfully occurred.

Poor Performance:
Inefficiency is not misconduct. Unsatisfactory job performance, inability to perform to the employer’s standards, failure to meet a quota, failure to meet expectation, etc., are all euphemisms for the same thing, and do not constitute misconduct.

Misconduct may conceivably be established if it is shown that the claimant was fully capable of performing the work in a satisfactory manner and that the claimant’s failure to do so was due to an intentional or willful failure to perform to his ability and to a disregard of his duty to the employer.

Possibly nothing eviscerates an employer's misconduct case faster than a poor performance review.

Inefficient or unsatisfactory job performance and even isolated instances of carelessness or ordinary negligence may be misconduct, however, in those business activities requiring a heightened standard of responsibility, such as medical care and police and emergency activities. A seamstress may sew one too many buttons on a shirt without misconduct. An anesthesiologist may not push one too many buttons without dire misconduct.

Off-Duty Conduct:
Off-duty conduct is generally not considered to be misconduct unless it has a substantial impact on the employer’s business or interferes with the worker’s job performance. So if a telemarketer dances topless on amateur night at the local girlie bar, she has not committed misconduct. If the same telemarketer sings herself hoarse every night at the karaoke bar, she may have.

An employee does not completely escape his duty not to infringe upon his employer’s business interests simply because he is off duty. However, the connection with the work must be very clearly established. Rules of behavior which govern the work place normally do not apply to employees off duty.

On the other hand, an employee whose work requires him to drive company vehicles may be guilty of misconduct in many states if he loses his driver’s license because of off-duty driving while intoxicated.

Condoned Conduct:
If the conduct of an employee has been condoned by his employer, that conduct may not be used by the employer as grounds for a subsequent discharge for misconduct.

When an employer knows of the employee’s acts or omissions but does not indicate disapproval, takes no action to warn or discipline the worker within a reasonable period of time, excuses the conduct, or forgives the conduct, then the employer has waived his right to discipline or discharge the worker for that conduct because he has condoned it.

This does not mean that the employer cannot delay discipline pending an investigation of the conduct, or that the employer cannot give the worker a second chance. If the employer acknowledges the misconduct and gives the employee any direct or implied warning, the act or omission has not been condoned.

Suspension:
There is no distinction between "discharge for misconduct" and "suspension without pay for misconduct". In either case, the worker performs no service and receives no pay, and therefore he is unemployed. Like any temporarily laid-off worker, he may not be expected to search for work, since his term of unemployment is limited and he has an expectation that he will still have a job.
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WARNINGS

Unemployment compensation regulations strenuously emphasize advance notice and also warnings. Notice and warnings are two different things. Advance notice is given before the transgression ever happens. Warnings are given when it happens.

The purpose of advance notice and of warnings is to let employees know that certain behavior will be considered misconduct and may warrant a discharge. Some state agency regulations even specify exactly how many warnings must be documented before misconduct can be proven.

An excellent example of a notice might be a dress code published in the employee manual. The worker may have no way of knowing that failure to dress in a specific manner will be considered misconduct if he is not apprised in advance of the requirement. Therefore, failure to observe the dress code may not meet the definition of misconduct until advance notice has been given and understood. Once he has read and understood the manual, he knows about the dress code.

A common example of warnings might be the typical "progressive discipline" policy. A worker is absent without notice and without an excuse. On his return, he is told in writing that this is one of three warnings he will receive, and if he burns up all three, he will be discharged. On the second occurrence, he gets a note saying that the next time will be his last. On the third, he is discharged.

Policies:
If the employer has published standard rules in a manner reasonably calculated to put employees on notice that certain conduct will be subject to discharge, that may well be enough warning to establish misconduct. This is commonly done with an "employee manual" or "policy handbook". To establish prior warning, it is well for the employer to require signed receipt for the handbook which states that the worker has received, read, understood, and had an opportunity to ask questions about, the rules. For example, if a prohibition against smoking in the paint room is plainly set out in such a manual, and the worker signed such a receipt, it would be hard for him to claim he knew nothing about it.

The contrary is also true. We repeatedly see the most obvious misconduct excused and benefits paid on the grounds that the policy manual did not prohibit the conduct. See the "War Story" immediately below this section.

However, warnings are not absolutely necessary all the time. Some conduct is so egregious that no warnings are needed. Therefore, the worker who received no manual might show up with no tie and commit no misconduct, but if he streaks the halls, that may well be misconduct.

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Contract:
If an employee breaches a contract of employment, that alone may not constitute disqualifying misconduct unless that breach was a willful disregard of the employer’s interest.
Methods:
Warnings usually occur in one of two ways:

  1. Employees will be given employee handbooks, and they will be notified as new rules are published.
  2. Employees will be given warnings as a form of minor discipline for prohibited conduct.

The first method goes to prove that the worker knew about the rules. The second method goes as well to prove that the worker willfully defied the rules.

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ABSENTEEISM

Chronic absenteeism, without notice or without excuse, and continued despite warnings, is misconduct.

The elements of this misconduct may include one or more of the following:

  1. Excessive absences
  2. Inadequate notice of absence
  3. Inadequate excuse for the absences
  4. Absences continued after warnings

Chronic excessive absenteeism can be misconduct even if the claimant gives notice of the absences. The worker is hired to work, not to be absent. Chronic unexcused absence can therefore breach the fundamental employment agreement.

If excessive absenteeism is due to a serious disability, this may be a sort of voluntary quit. The worker is not able to work, nor is he making himself available for work.

If the absences are due to a continued series of relatively minor problems, it becomes misconduct.

Excessive Absences:
Even if the absences are not excessive, they may be misconduct if they are without notice. Consider the example of a drawbridge attendant, whose job is solitary and crucial. One absence without notice could wreak considerable harm.
Notice of Absences:
If an employer has established reasonable procedures for giving notice of absences, the claimant must, if possible, comply with those procedures. So if the employer has a specific number in the HR department which the worker should call, just telling the receptionist doesn't count; he must call that number. But the procedures must be reasonable. If he is required to speak with one specific person by telephone and that person is never there, and he leaves a message, that may be enough.

If the claimant delegates the task of notifying the employer to some other person, the claimant remains responsible if that person, in fact, fails to notify the employer as required. So, "I told my girlfriend to call" does not count unless the girlfriend actually makes the call.

Inadequate Excuses:
Frivolous reasons for absence are may be considered misconduct, especially after warnings by the employer. If the employer has a reasonable policy which requires employees to get a "doctor's note", for absences due to illness, then claimants must usually comply.
Absence After Warning:
Warnings very frequently apply to discharges for absenteeism. In part, this is because a worker who is discharged for absenteeism is apt to be a habitual offender. Therefore, generally, an employee should be warned of unacceptable absenteeism before discharge.
Absence Due to Transportation Difficulties:
Repeated absences due to lack of transportation, especially in the face of warnings, will generally be considered misconduct. Transportation is almost always the employee's responsibility.
Absence Due to Family Obligations:
Childcare and other domestic obligations are generally the responsibility of the claimant. Such impediments to working are not considered good cause for repeated absences from work.
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TARDINESS

Essentially, the same rules of thumb governing absenteeism apply to tardiness. The principal difference is that the excuses for tardiness are usually less compelling than for a complete absence. The state agencies are more inclined to consider tardiness inexcusable misconduct.
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VIOLATIONS OF RULES AND POLICIES

Deliberate failure, without good reason or excuse, to follow known, reasonable rules or policies, generally constitutes misconduct in connection with the work.

Notice of Rules:
A worker must have notice of the employer’s rules before a violation will be misconduct. If the worker has been informed of the rules, or if the rules have been published in the work place, the worker may be presumed to know them. The best scenario occurs when a worker receives an employee manual, and he signs a statement saying that he has received, read, and understood the policy manual and that he had an opportunity to ask questions about it, and the employer retains that signed statement.
Reasonable Rules:
The employer’s policies must be reasonably related to the conduct of the business, and they must not unduly impinge upon the worker’s rights or privacy.
Uniform Application of Rules:
The employer’s rules and policies must be uniformly enforced in similar situations among similar classes of employees. If the rules are enforced either arbitrarily or inconsistently, then the claimant may well contend that he had no certain way of knowing that he would be subject to discharge for violation of policies. He may justifiably say: "Well, Freddie wasn't fired when he used a company car on the weekend."

Uniform application of rules among different classes of employees, or similar enforcement of the rules in dissimilar situations, is not required. The employee may not justifiably say: "Well, the CEO wasn't fired when he took a company car home for the weekend."

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INSUBORDINATION

Insubordination consists of willful disrespect for management’s legitimate authority to conduct its business and to control the business premises.

Cases involving insubordination usually fall into two broad categories:

  1. Refusal to obey instructions.
  2. Disrespect for supervisors.
Disobedience:
A deliberate refusal to obey reasonable instructions is insubordination and therefore misconduct. Note that the instructions must be reasonable.

These grounds for a misconduct discharge are too often ignored in favor of some other grounds which do not work. For example, a salesman may be fired because he does not meet quota. Not meeting quota is a performance issue, and therefore not misconduct. But there is likely to be a sales manager who instructed the salesman exactly what he needed to do in order to make his quota, and there are certainly other salesman who do follow these instructions and do therefore make their quota. An alert manager can probably identify what this salesman does differently which prevents him from making his quota. If the manager cannot correct the salesman's conduct by instruction, and he then discharges the salesman for failure to follow supervisory instructions, then that may establish misconduct. Many similar instances can be envisioned.

Disrespect:
Deliberate disrespect for authority, particularly if it threatens the employer’s control of the work place, is misconduct. Whereas banter and profanity may be common between workers, it may not be acceptable when addressed toward supervisors.
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REFUSAL TO WORK

Generally, the authority of an employer to assign work which is reasonably within an employee’s ability is fairly broad.

Terms of Hire:
An employee must perform work as assigned by the employer unless the assignment is in direct conflict with an agreement of employment. So a carpenter may be expected to help sweep up if the employer tells him to.
Ability:
An employee must perform work as assigned by the employer unless such assignment is clearly beyond the employee’s ability. So a payroll clerk may not be expected to complete the company's tax filings just because the employer tells him to.
Agreements or Contracts:
Relevant agreements limiting an employer's ability to change an employee’s work assignment would be found in union collective bargaining agreements or specific professional employment contracts. So a union carpenter may not be expected to help sweep up if the contract says he is not to.
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OVERTIME

If a worker refuses to work reasonable overtime when overtime is customary in the business or industry or when the overtime results from an emergency, that will generally be misconduct. So a snow plow driver, for instance, who refuses to work overtime in a blizzard may commit misconduct.

Agreements or Policies:
Where overtime work assignments are controlled by either a collective bargaining agreement or a policy of the employer, overtime assignments should be made in accordance with the agreement or policy. So if snow plow drivers with twenty years seniority are exempted from overtime by company rules, then a twenty-five year man who refuses overtime when there is no blizzard may not commit misconduct.
Reasonable:
Otherwise, an employer has authority to request overtime in accordance with the needs of the business so long as the requests are reasonable and do not unduly infringe upon the employees’ legitimate expectations for personal time. So our snow plow driver, for instance, may not be expected to work double shifts and weekends all winter.
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NEGLECT

Willful negligence or inattention to duty, particularly if repeated, or when it constitutes a risk to safety of persons or property, will be considered misconduct connected with the work. An example might be a lifeguard who spends all day talking to the girls instead of watching the pool.

Isolated instances of ordinary negligence or inadvertence are not misconduct, but repeated inattention or neglect of duties are. So the lifeguard may briefly talk to a girl once without misconduct, but not all day every day.
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LEAVING ASSIGNED WORK AREA

Leaving the assigned work area without authorization or substantial cause is misconduct connected with the work. Note the phrase "substantial cause". Some workers think that a cigarette break is substantial cause. Some employers think that a bathroom break is not.
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SLEEPING ON THE JOB

Sleeping on the job is clearly misconduct.
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PERSONAL CONTACTS ON THE JOB

Repeated or persistent personal contacts during the working hours, or using the employer’s communication equipment, especially in the face of warnings, may be misconduct connected with the work. Excessive personal business inevitably involves some neglect of duties. So a receptionist who spends all day gabbing with her boyfriend on the phone may commit misconduct.

These last three headings, leaving, sleeping, and personal contacts, may seem to reasonable people too obvious to mention. But many contentious unemployment cases have turned on these issues.
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FALSIFICATION AND DISHONESTY

Falsification of company records is misconduct.

Records:
At times, a worker may falsify certain company records for various motives. For example, a worker may falsify production records to meet a quota, or may falsify inspection records to fudge quality, or may falsify hiring records to hide hiring illegal aliens. This is misconduct. Falsification of production records, for instance, may amount to theft from the employer.
Dishonesty:
Misrepresentation and acts of dishonesty, if serious or repeated, are misconduct. An employer has a right to expect honesty from his employee.
Job Applications:
Falsification of job application records is generally considered misconduct. An example might be an applicant for bank teller who hides a criminal background, or a teacher who claims certification which he later proves not to possess.
Time Cards:
Falsification of time and attendance records usually amount to theft from the employer because the employee is claiming wages to which he is not entitled. This is misconduct. Frequently, this type of falsification is accomplished by having one worker punch a time card for another worker. Here, both commit misconduct.
Falsified Sales Records:
Upon occasion, a commissioned sales person may falsify sales records in order to increase his commission or bonus. This is misconduct. Like production records and time cards, this amounts to theft from the employer.
Falsified Medical Statements:
Upon occasion, a worker may falsify a physician's statement to justify his absence, by changing the dates on the statement. This is misconduct.
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DISRUPTIVE BEHAVIOR

Willful conduct which disrupts the efficiency, harmony, and discipline of the work place, especially when repeated and in the face of warnings, is misconduct.
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FIGHTING

Fighting among employees during working hours on company premises is misconduct.

Blame Not an Issue:
Both parties or either party who are fighting commit misconduct regardless who started the fight.
Self defense:
A claimant may not commit misconduct if he can show that he was only defending himself, that he did not start the fight, that he did not agitate the fight, and that he was attempting to withdraw.
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ABUSIVE BEHAVIOR

Abusive behavior and abusive, vulgar or demeaning language in the work place, especially if it is persistent and in the face of warnings, is misconduct.

Environment:
Not all work environments are the same. Vulgar language which may be tolerated on a fishing vessel may not be acceptable in a grocery store. To be misconduct, the behavior should exceed the customary standards in the particular work place.
Discrimination:
Discriminating and demeaning language directed at particular employees because of their race, national origin, sex, etc., is almost always misconduct.
Threats:
Threats toward other workers, etc., may constitute misconduct. The employer may not have to wait for the threatened event to happen before acting upon the threat.
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DISLOYALTY TO THE EMPLOYER

An employer is entitled to loyalty from his employees. Publicly disparaging the employer or his products or the conditions of employment without justification and outside the scope of protected activity may be misconduct. Competing with the employer may be misconduct.

Disparagement:
Vindictive public disparagement of the employer or the employer's methods or products may be misconduct. Thus, a lab assistant who falsely claims that the company's soap does not clean may commit misconduct.
Whistle-Blowing:
Criticism of an employer or the employer's methods or products, when that criticism is aimed at the public interest, is not misconduct. Thus, a lab assistant who publicizes the company's attempt to cover up toxic chemicals in their soap may not commit misconduct.
Collective Bargaining:
Public criticism of the conditions of employment is often protected for union employees. Even when such criticism is not directly related to bargaining activity, it may still be protected speech. However, if the criticism is without foundation, is designed to cause dissension, or is designed to vindictively embarrass the employer, and is repeated despite warnings, it may be misconduct. So a worker who shouts at the gates that the company hires scabs may not commit misconduct. A worker who shouts at the gates that the owner is a pervert may.
Competition:
An employer may prohibit workers from competing with the employer, especially when the worker uses the employer’s equipment or time, or acquires the customers in the course of his work. So an employee of a lawn service who, when handing a prospect a proposal, adds: "But I can do it for you on the side for less money," and hands the prospect his card, may commit misconduct.

It may also be misconduct for an employee to compete with his employer by offering the same services to the public at large, even though he is not stealing his employer’s actual customers. This is especially so when the employee has received clear notice that competition is prohibited. So if the same lawn service employee knows it is prohibited, yet hangs out his own shingle, that may be misconduct.

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RUDENESS TO CUSTOMERS

Rudeness or inattention to customers is generally misconduct.

Good Will:
Any business depends on the good will of the public. Even demanding customers must be treated politely. Rudeness or inattention to customers is unquestionably contrary to the employer’s interest.
Opportunity to Rebut:
When a worker is discharged because of customer complaints, the employer has an obligation to find out if the complaint is true. This may require more than hearsay; certainly it requires more than the mere complaint. Complaints ought to be discussed with the worker, and the worker ought to have an opportunity to rebut them. Your state may require that he be warned before discharge for misconduct to be established.
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ALCOHOL

Drinking during working hours and on company property, or drinking off the job, either if it impairs the worker’s ability to perform his job, or if it infringes the employer’s business interests, may be misconduct.

Drugs and drinking are not the same. The difference is that drugs are illegal whereas alcohol is not. Therefore, job impairment may be the key issue in cases involving alcohol.

Refusing to comply with an employer’s reasonable testing policies or rehabilitation programs may also constitute misconduct.

The problem is proof. The road one must follow to prove alcohol use is full of potholes and winds up a steep hill with strange twists and turns. Simply showing proper breath analysis procedures, for instance, is a nightmare to any ordinary common-sense person. A worker may smell and act "loaded to the gills", so that anyone with half a brain would know he is "drunk as a skunk." This common-sense observation is not proof. For this reason, it is many times more effective to dwell upon the impairment which drunkenness causes rather than the drunkenness which caused it. Here is an example: Assume an obviously drunk waiter is obnoxious to his customers. If the owner of the restaurant fires the waiter, and in any part of the reasons for discharge he mentions drunkenness, he may have to show where the alcohol was consumed, arrange for expensive test results, prove the validity of test procedures, and even bring testimony from the company which performs the test. If the restaurant owner fires the waiter strictly for rudeness to the customers, the alcohol issue need not surface.

Do not mention what you cannot prove.

Policy:
Drinking during working hours or on company premises generally is misconduct. The employer usually need not show an explicit, published policy prohibiting alcohol use on the premises. Common knowledge tells us that drinking on the job is prohibited.
Impairment:
Where drinking on the job cannot be established, the employer must show reasonable evidence either that the worker was under the influence of alcohol during working hours, or else that the worker’s ability to work was impaired by alcohol.

Rehabilitation:
In many states, drug dependency may be deemed an "illness". If drugs are proved, and dependency is alleged, and illness is pretended, then the issue becomes whether the claimant may collect when separated from employment due to illness. This may turn on whether the individual made reasonable efforts to retain his job. If the worker voluntarily submitted to treatment and made consistent efforts to maintain the treatment, then he satisfies this requirement. Note that there is no requirement that the treatment be successful. There is likewise no requirement that the worker stay off drugs. The treatment is the thing. Its success or failure is not. See the following "War Stories" for apt examples.
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Testing:
It may or may not be misconduct for a worker to voluntarily quit his job either because he disagrees with or else is unwilling to undergo an employer’s alcohol testing policies. Tests which are "doctored" or diluted may be invalid. The act of doctoring or diluting the test sample may then become misconduct. See the "War Story" immediately below.
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Results:
Indirect consequences of drunkenness will frequently result in misconduct. An example might be a truck driver who lost his driver’s license or became uninsurable because he was caught drunk driving.
Illness:
We have seen reference to unemployment case law where a worker claimed that consistent unexcused absences were the result of an "illness" (alcoholism) and of prescription drug abuse which he could not control. Full details of this case are not available to us, but it appears that the worker, who had a long history of attendance problems, and had received many warnings, went absent without leave for a prolonged time when he entered a hospital for rehab. By the time he emerged, he had been replaced at work. He applied for unemployment. The state agency, after hearings, granted him benefits, on the grounds that his absences were due to an illness which he could not control. The employer had to appeal this case all the way to the state supreme court in order to deny benefits. The substantial costs of such appeals are not recoverable.

This case certainly suggests that a claim based upon alcoholism as an "illness" is at least conceivable.

In this regard, see also the sub-section entitled "Rehabilitation" under the section "Drugs" below, including the "War Story" mentioned there.

Off Duty:
Discharges for drinking off the job generally depend upon showing impairment on the job.
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DRUGS

Drug use at any time, but especially on the job or at the employer’s premises, is misconduct.

Drugs and drinking are not the same. The difference is that drugs are illegal whereas alcohol is not. Therefore, impairment may not be the key issue in drug use.

Refusing to comply with an employer’s reasonable drug testing policies or rehabilitation programs may also be misconduct.

The problem is proof. The road one must follow to prove drug use is full of potholes and winds up a steep hill with many strange twists and turns. Simply showing chain of custody of the test samples, for instance, is a nightmare to any ordinary common-sense person. A worker may act so "loaded" that anyone with half a brain would know he is "stoned out of his mind." This common-sense observation is not proof. For this reason, it is many times more effective to dwell upon the impairment which drug use causes rather than upon the drug use which caused it. Here is an example: Assume an often obviously stoned waiter habitually cannot show up on time. If the owner of the restaurant fires the waiter in any part for habitual drug use, he may have to show where the drugs were consumed, arrange for expensive urinalysis results, prove chain of custody of the test samples, and bring testimony from the lab which tested the samples. If the restaurant owner fires the waiter strictly for repeated unexcused absences, the issue need not surface.

Do not mention what you cannot prove.

Use Alone:
Using "controlled substances" on the job or on company property is misconduct. A violation of the employer’s drug policies can be established without necessarily establishing impairment as a matter of fact. If no impairment amounting to misconduct can be found, and the hurdles to proving drug use can be overcome, drug use on the job alone will suffice to prove misconduct.
Impairment:
Where drug use on the job cannot be established, the employer may have to show reasonable evidence either that the worker was under the influence of drugs during working hours, or else that his work was impaired by drug use.
Testing:
It is generally misconduct for a worker to voluntarily quit his job either because he disagrees with or else is unwilling to undergo an employer’s reasonable drug testing policies. A worker may also be discharged for misconduct if he refuses to comply with reasonable drug testing policies. Some states, in fact, offer tax incentives to employers who institute a state approved "drug free work place", which may involve periodic testing.

Tests which are "doctored" or diluted may be invalid. Kits for doctoring the test sample are commercially available on the internet. The act of doctoring or diluting the test sample may then become misconduct. See the "War Story" immediately below.

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Cause for Testing:
There must generally be some reason to test for drugs. The reasons for testing fall into four categories:
  1. Pre-employment -- where all new hires are tested prior to employment
  2. Periodic -- where all of a class of employees are tested at stated intervals
  3. Random -- where all of a class employees are subject to test at any random time
  4. Blanket -- where everyone in a class of employees is tested once
  5. Probable Cause -- where erratic behavior or an unusual incident prompts a test of one individual

Even if a test is positive, it may fail to meet the criterion of probable cause. See the two cases examined in the following "War Story".

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Proof:
The burden is on the employer to show that the testing procedures were technically valid, were reliable, and met due process requirements. These facts must be established by evidence such as testimony from the test administrators. One of the thorniest issues seems to be proving the "chain of custody" of test samples, so that the worker cannot claim that "Someone must have switched the sample."
Illness:
We have seen reference to unemployment case law where a worker claimed that consistent unexcused absences were the result of an "illness" (alcoholism) and of prescription drug abuse which he could not control. Full details of this case are not available to us, but it appears that the worker, who had a long history of attendance problems, and had received many warnings, went absent without leave for a prolonged time when he entered a hospital for rehab. By the time he emerged, he had been replaced at work. He applied for unemployment. The state agency, after hearings, granted him benefits, on the grounds that his absences were due to an illness which he could not control. The employer had to appeal this case all the way to the state supreme court in order to deny benefits. The substantial costs of such appeals are not recoverable.

Though the drug abuse was bundled with alcoholism in this case, the case certainly suggests that a claim based upon drug abuse as an "illness" is at least conceivable.

In this regard, see also the sub-section entitled "Rehabilitation" below, including the "War Story" mentioned there.

Off Duty:
Discharges for off-duty drug use will often depend upon showing impairment on the job.

"Second-Hand" Smoke:
In the case law, we frequently find instances where a claimant who has tested positive for marijuana metabolites has alleged that they did not themselves smoke the herb, but were present at some convivial gathering where the herb was smoked. This is the "second-hand smoke" defense, and it sometimes works. See the War Story immediately below this for an example which illustrates this as well as several other drug test pitfalls.

Whether the second-hand smoke defense succeeds seems to turn on three points:

  1. Is the claimant credible?
  2. Is the level of metabolites low?
  3. Did the employer provide expert testimony which ties the level of metabolites found by the test to the probability of first hand use?
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Rehabilitation:
In many states, drug dependency may be deemed an "illness". If drugs are proved, and dependency is alleged, and illness is pretended, then the issue becomes whether the claimant may collect when separated from employment due to illness. This may turn on whether the individual made reasonable efforts to retain his job. If the worker voluntarily submitted to treatment and made consistent efforts to maintain the treatment, then he satisfies this requirement. Note that there is no requirement that the treatment be successful. There is likewise no requirement that the worker stay off drugs. The treatment is the thing. Its success or failure is not. See the following "War Stories" for apt examples.
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SAFETY VIOLATIONS

Failing to abide by reasonable safety rules established by the employer may be misconduct.

Posting:
Safety rules are usually posted at the work site. They should make it clear that safety violations will be cause for disciplinary action. This helps establish prior warnings.
Repeat Violations:
Usually, repeated violations of safety rules is necessary to establish willfulness. But in flagrant cases of endangerment, where the worker either did know, or else should have known better, a single incident may be enough to establish misconduct. So a landscaper who neglects to wear hearing protection when mowing may have to be warned several times, but the same landscaper, if he reaches into the mower while it is running to remove a stick, may not.
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ACCIDENTS

Accidents resulting from willful or careless disregard of safety and reasonable standards of behavior may sometimes be considered misconduct.

Distinction:
The general rule is that accidents are not misconduct. The term "accident" implies inadvertence. An accident is a circumstance which the worker would not ordinarily be expected to foresee. However, "accidents" can sometimes be the result of such gross negligence that they demonstrate a wrongful intent, or else show a willful disregard of the employer’s interests. In this sense, an accident can be considered misconduct. If a speeding truck driver fumbling for a cell phone on a winding mountain road drives a load of caustic acid down a cliff into a river, this may be gross negligence and misconduct.
Repeated Accidents:
Repeated accidents may add up to misconduct. One traffic accident in the company truck may not be misconduct. Five accidents in the company truck in a six month period may well be another story. The one accident may be inadvertent, however, five may demonstrate carelessness.
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DAMAGE TO EQUIPMENT AND PROPERTY

Damage to the employer’s equipment and property resulting from willfulness or from gross negligence may be misconduct.

Distinction:
Damage resulting from ordinary use, from inadvertence, or from ordinary negligence will generally not be considered misconduct. So the crane operator who blows a hydraulic line may not commit misconduct.
Deliberate Damage:
When a worker deliberately damages company property, it usually results from a dispute with the employer. In these cases, the employer should concentrate upon the damage, and not upon the dispute. For example, assume that a crane operator asks for a raise, is denied, becomes angry, and puts the employer's Mercedes on the roof. The employer who says "I fired him because he got mad when I wouldn't give him a raise and put my Mercedes on the roof." is on very different grounds from the employer who says "I fired him because he put my Mercedes on the roof." The first statement includes a non-disqualifying factor: the raise request. The second does not.
Careless Damage:
Careless damage often results from failure to follow prescribed procedures or supervisory instructions. This failure is the misconduct. For example, assume that our crane operator neglected to deploy his outriggers and the crane overturned. That the crane overturned is an accident. That he failed to deploy the outriggers is misconduct. Firing for the accident may result in benefits. Firing for the misconduct is not likely to.
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UNSAFE WORKING CONDITIONS

A worker’s refusal to perform work which he believes, with reasonable cause, to be unsafe or hazardous to his health will not constitute misconduct. An example might be an arc welder who is required to weld while standing in a puddle of water.

Notice:
The employer must have an opportunity to rectify the unsafe conditions. Therefore, it is incumbent upon the worker to notify the employer of them. If the arc welder notifies the employer of the puddle of water, the employer may be able to drain it off.
Morals:
Safety may also mean safety to the worker's morals. Thus, if a motel in Nevada decides to stable prostitutes, the desk clerk may object that the change in ambience is morally unsafe.
Meeting Requirements:
Generally, where working conditions meet the requirements of governmental safety regulations, a worker may not prevail on a claim of unsafe working conditions. Thus, if a ferry has recently passed inspection for seaworthiness, the deckhand will have trouble establishing that he quit because the vessel was in sinking condition.
Proof:
The important element in determining this type of case is the actual degree of risk. The evidence of such a risk must be reasonable and have some objective support.
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ARREST AND INCARCERATION

If a worker’s arrest and incarceration substantially interfere with the worker’s ability to perform his job, or if it jeopardizes the employer’s reputation or business interests, it may be considered misconduct.

Notice:
If as a result of incarceration the worker cannot appear at work, then the worker has the responsibility to promptly notify the employer.
Brief Incarceration:
If the employer is properly notified, and the incarceration within the limits which are normally tolerated by the employer for absences arising from other reasons, then the state agency may expect the absence for incarceration to be excused in that same way as other absences would be.
Scandal:
If a worker is arrested for a scandalous act of criminal conduct, and the resulting notoriety threatens the employer’s reputation, the arrest may be considered misconduct.
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SEXUAL HARASSMENT

Sexual harassment of subordinate employees and co-workers is misconduct.

Sexual harassment includes but is not limited to:

  • Unwanted sexual overtures.
  • Coercive pressures on subordinate employees for sexual attention.
  • Offensive sexual advances and suggestions to co-workers.
  • Sexual conduct which creates a hostile or untenable atmosphere in the work place.
Proof:
If the worker does not admit to harassing the victim, then the employer must usually get the victim to testify. The victim may be diffident.
Taking Offense:
Sexual harassment claims can be lucrative. The proponents of sexual harassment claims seek to define the act not only subjectively, but entirely one-sidedly. If the alleged victim can by any conceivable or even inconceivable means contrive to take offense, then they would say that offense has been given. The idea that a person should be liable for giving what another person forcibly takes from him may be absurd, but that is sometimes the way it works. Remember the brewery executive who was fired when a woman complained that she overheard him describing the plot of a Seinfeld episode from the night before to a third worker. The worker lost his job and the brewery lost a $23 million lawsuit in that case.

Therefore, an employer should not ignore even an absurd claim of sexual harassment, but should attempt to resolve the issue.

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PERSONAL APPEARANCE AND GROOMING

If a worker fails to abide by rules prescribing personal appearance and grooming, that may be misconduct.

  1. The rules must reasonably enhance the employer’s legitimate business interests.
  2. The rules must be made clear to the employees.
  3. The rules must not discriminate against particular classes of employees.
Reasonable:
"Reasonable rules are rules which prescribe appearance which enhance the business, or else rules which prohibit appearance which harms the employer’s interests. For example, a Burger King may reasonably require a Burger King hat and prohibit a Wendy's hat.

If the worker’s appearance is so "out of line", that it is plainly inconsistent with prevailing practices in the employer’s type of business, and it tends to adversely affect either the employer’s public image or else the discipline of the work place, then the employer can impose reasonable rules.

Reasonable rules might relate to:

  1. Cleanliness and personal hygiene.
  2. Appropriate dress.
  3. Uniform requirements.
Preferences:
The employer’s requirements concerning personal appearance may not be considered reasonable if they are based merely on the employer’s arbitrary personal preferences. What is "reasonable" will therefore shift along with social mores. Twenty years ago, six earrings, a nose ring, a tongue stud and a labret would have been outlandish. Now, it is ordinary. The employer may personally prefer an employee who does not look as though he fell into a tackle box, but self-mutilation may not be misconduct.
Embarassment:
Uniform or dress requirements will not generally be considered reasonable if they cause embarrassment to the employee. Therefore, if a waitress at an ordinary steak house were suddenly required to wear scanty clothing, or a plunging neckline, or expose her midriff, this may not be reasonable.
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POLYGRAPHS

A worker may not be determined to have committed misconduct solely on the basis of polygraph test results. Nor is it misconduct to refuse to take a polygraph test.

The validity of polygraph tests is held in serious doubt by both the courts and the scientific community. We have seen case law where a claimant has failed as many as three separate polygraph tests and yet been granted benefits.

Law:
In 1988, the U.S. Congress passed the Employee Polygraph Protection Act. This law prohibits polygraph tests by private employers except under specific limited circumstances. Here are a few of the restrictions imposed by this law:

Private employers may not:

  1. Use any lie detector test other than a polygraph.
  2. Use a polygraph in connection with a job application or hiring action.
  3. Discharge, discipline or discriminate in any manner, or deny employment or promotion to, or threaten to take any action against, any employee or applicant who refuses, declines or fails to take or submit to a test.
  4. Discharge, discipline or discriminate in any manner, or deny employment or promotion to, or threaten to take any action against any employee or applicant on the basis of test results.

Note how these restrictions both deprecate polygraph results and at the same time prohibit any other test results aimed at the same end.

Private employers may use polygraphs where:

  1. Tests are administered in connection with an ongoing investigation involving theft, embezzlement, misappropriation, industrial espionage, or sabotage.
  2. The employee to be tested had access to the property that is subject to the investigation.
  3. The employer executes a written statement detailing the two requirements above.
  4. The test is restricted to specific matters subject to investigation and does not inquire into other activities of the employee.

And, there are some other requirements:

  1. Examiners must be licensed by the state.
  2. Results may be disclosed to anyone by the employee.
  3. Results may not be disclosed by the examiner except to employer, employee, and to a court or government agency, and that must be in accordance with due process.
  4. Likewise, the employer may not disclose results except to a court with due process.

Of course, as with so many laws, government has excepted itself from the operation of this law, and may both require polygraphs to its hearts content, and use the results to make decisions.

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LOST LICENSE OR CERTIFICATION

If a worker either willfully or from neglect fails to maintain a license or certification required for his job, he may commit misconduct

Distinction:
If a worker loses his license because of his own willful act, or if he loses his license because he neglected to renew it, then it may be misconduct.

But if the license is lost from circumstances beyond the control of the worker or the employer, but nonetheless the claimant cannot continue to work, then this may be considered to be a voluntary quit.

Examples:

  • A truck driver does not go down to the DMV and take the test. This may be misconduct.
  • A truck driver, after four convictions for drunk driving, loses his license. This may be misconduct.
  • A truck driver's vision degenerates to the point that his license cannot be renewed. This may be a voluntary quit.
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THEFT

If a worker steals from his employer, this is plainly misconduct.

Theft can take innumerable forms. One worker gives his brother a "discount" on goods. Another snacks off the store racks. A third takes a free pair of shoes from a supplier, then "returns" them to the store for a refund. A maintenance guy loans the company truck to a friend when he moves.

Proof:
When unemployment cases based in discharge for theft become problematic, it is usually because there is some flaw in the proof.

Real life examples:

  • A baker took a few buns, and was fired for it. He admitted that he took the buns, but said that they were damaged, and were heading for the trash anyway. The company says they were good. Their case is that he admits he stole product. His case is that he admits he took trash. He won unemployment. The company could prove that he took buns, but not that he took product.
  • We find any number of cases where a teller or cashier was fired for coming up short in her till. (In one extreme case, the head teller even strip searched the suspected teller for it!) The problem is: Is this theft or incompetence? If the employer alleges theft, he must be prepared to prove it. "The money is missing" is not proof.
  • The worst case gone wrong which we have seen involved a man who was actually caught red handed stealing a house piece by piece. Naturally, he was fired for theft. But he collected unemployment because the modular house manufacturer for which he had worked said, in plain English, "We fired him because he stole." Find out how he got away with is and what the employer should have said by taking our famous on-line Unemployment Compensation Seminar.

In a few states, the value of the theft must exceed a certain threshold before benefits are denied. In one remarkable instance which we have heard of in New Jersey, a man actually collected unemployment while in prison for the embezzlement for which he was fired, on the grounds that, although the total amount he stole far exceeded the threshold, none of the individual thefts did.

See also the "War Story" immediately below, where the theft of one paper cup turned into over $400,000.00 expense to the company.

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CAVEAT: SPECIFIC LAWS AND REGULATIONS VARY WIDELY FROM STATE TO STATE. THESE ARE ONLY GENERAL REMARKS. UNEMPLOYMENT TAX ADVISORY CORPORATION DOES NOT RECOMMEND NOR ADVISE ANY MATERIAL CONDUCT ON THE BASIS OF THESE REMARKS. FOR ADVICE RELATING TO YOUR SPECIFIC CIRCUMSTANCES, CALL UTA AT 1 800 998 8822.