Beware ‘aggravated misconduct’ firings–unemployment benefits hang in the balance

Employees who commit “aggravated misconduct” and are terminated may not be eligible for unemployment compensation benefits. Conduct that amounts to a felony can count as aggravated misconduct if it’s related to employment.

Therefore, some employers may assume that when an employee is arrested and charged with a felony related to work, it makes sense to fire the employee. Not necessarily.

A better approach is to base the termination decision on an individualized assessment of the facts. That’s because, if the charges are dropped, the former employee may be eligible for unemployment.

Recent case: Barbara Hulett-Anderson, a nurse for the Minnesota Department of Corrections, was suspected of providing prescription medication to a co-worker. She was arrested and charged with a felony. Then, based on her arrest, she was terminated for aggravated misconduct.

Her application for unemployment benefits was denied, even though the charges were dropped. She appealed and the court reversed, reasoning that since she no longer faced charges, she wasn’t guilty of aggravated misconduct based on the arrest. (Hulett-Anderson v. Minnesota Depart­­ment of Corrections, No. A11-483, Court of Appeals of Minnesota, 2012)

Final note: What should the em­­ployer have done instead? It could have used its investigation into the underlying incident, which occurred at work, as the basis for her discharge rather than her arrest. Then it would simply have to persuade the un­­em­­ployment comp judge that she did provide prescription drugs to the co-worker and that the offense was misconduct.