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What is Misconduct in Unemployment Insurance Cases?

Misconduct in unemployment insurance cases was defined in a 1941 case called Boynton Cab Company v. Neubeck, in which the Wisconsin Supreme Court held that:

"The term 'misconduct' as used in (the relevant statutory section) is limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employee's duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances or good faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of the statute."

The interpretation of misconduct in the Boynton Cab decision has since been adopted in many other states and remains the law in Wisconsin today.

The most common contested unemployment scenario involves an employer contesting benefits of an employee it perceived as a poor performer or an employee terminated for multiple and ongoing minor offenses or violations of the employer's standards and policies. The only way an employer can prevail on its argument is to show that the employee was aware of the employer's policies and violated them anyway (repeatedly). Often, this still is not enough to demonstrate misconduct to the unemployment division because good faith errors in judgment or poor performance are not sufficient to establish misconduct. It is also very difficult to prove or disprove someone's state of mind. An employee's testimony that he tried his best and simply could not comply with the employer's performance expectations will go a long way, considering it is the employer's burden to establish misconduct to the unemployment division.

Even insubordination can be difficult to prove to the unemployment division to deny an employee's benefits. Single isolated incidents of insubordination are often excused by the unemployment division unless the incident is extremely egregious. Sometimes cursing at a superior, depending on the circumstances and the setting, is not even enough to reach the level of misconduct.

The presumption is that an employee is entitled to unemployment benefits when terminated from employment. The exception is when the employer can prove misconduct. For more on misconduct, read this. If you have a question about whether your termination was misconduct by unemployment standards, contact me.

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Attorney Nicholas M. McLeod is an associate attorney with Alan C. Olson & Associates, S.C. If you have questions about unemployment insurance, please contact him at: [email protected]

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