"Misconduct" is a word that terminated employees dread hearing. Reason: Being fired for misconduct typically means that an employee will have a tough time collecting unemployment insurance benefits. But what amounts to misconduct and what doesn't is not black and white.
A Shade of Gray
Annoyed with a co-worker's suggested scheduling change, an employee approached the co-worker, put her hands on her co-worker's neck, and "shook her lightly for about five seconds." The co-worker, who was on good terms with the employee, was shocked and offended, but not threatened. In fact, following the incident, they sat and laughed together.
The laughing stopped, however, when the employer found out about the incident. That's because the employee was subsequently fired for violating the company's zero-tolerance violence policy. When the employee sought unemployment benefits, her claim was denied because her behavior was tagged as "misconduct." So she appealed all the way to a state supreme court, but with no luck.
Said the court: Viewed in the best possible light, the employee's conduct amounted to a "joke about violence." Even though it might have been just a joke, she still acted with a willful or wanton disregard of the company's policy. Consequently, it was proper to deem her behavior as misconduct. (Medeiros v. Hawaii Dep't of Labor and Indus. Relations, HI Sup. Ct., No. 24318, 2005)
Another Shade Of Gray
An employee at a community blood center was counseled and put on probation after making three errors that resulted in the destruction of blood units. During her probation, she made two similar errors; a customer also complained that the employee had made inappropriate comments. Based on the continuing errors and inappropriate comments, the company fired her for a lack of judgment and failure to follow(SOP).
The employer fought the employee's bid for unemployment benefits, arguing that failing to follow SOP was misconduct connected to work. An appeals court ruled that while negligence and poor workmanship were reasonable grounds to discipline and terminate the employee, they weren't good enough reasons to deny her unemployment compensation under state law. Reason: The employer failed to prove, or even claim, that the employee willfully committed the transgressions; the errors were nothing more than negligent omissions. (Hoover v. Community Blood Center, MO App. Ct., WL 890080, 2005)
The outcome of Hoover underscores the fact that having a good reason to fire an employee is not always a good enough reason to disqualify the worker from collecting unemployment. The employer had solid evidence of the mistakes, had tangible consequences of the mistakes, gave the employee ample time to improve, and terminated her only after she not only made the same mistakes, but also took another misstep. What the employer lacked was evidence that she purposefully made the mistakes.
Deliberateness, on the other hand, was the employee's downfall in Medeiros. When deciding whether to contest an employee's UI benefits on the basis of misconduct, ask yourself: 1) did the employee act with intent, and 2) does the employee have a track record of similar behavior? The answers will help you determine whether the employee's conduct rises to the level of misconduct.
Note: Dissenting justices argued that even though she might have acted with intent, her actions amounted to a "good-faith error in judgment," not misconduct. Since UI laws vary by state, and unemployment eligibility determinations vary by UI board and by court, you can never be too sure about whether an employee will qualify for benefits. The most you can do is fight or appeal a claim with solid evidence of, and witnesses to, the misconduct.
In instances where the behavior does not amount to misconduct, you might be inclined to retain the employee so as not to have to pay out unemployment compensation. Having an employee collect UI benefits, however, is a small price for your company to pay compared to the consequences it may face for an employee's continuing errors.
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