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Will I Receive Unemployment? I was Fired for my Behavior Outside of Work.

Employers often have rules that extend beyond the walls of the office or factory and intrude on the outside lives of their employees. Some of the most common policies are those regulating illegal drug use both at work and outside of work. Some of the most controversial policies are those regulating the ingestion of unhealthy, but otherwise legal substances, including alcohol and tobacco off work premises. Other "outside of work rules" that some employers seek to impose are social networking regulations and residency requirements for municipal workers.

Many employees view employer rules that seek to limit them outside of work a violation of their basic liberties, take offense to such rules, and simply refuse to comply with such restrictions. When an employer fires a worker because of a violation of arguably overreaching policies or determines that the worker voluntarily terminated employment by refusing to comply with these rules, an employee should pursue their unemployment insurance benefits as they otherwise would.

The employer has the burden to establish that its work rule governing off-duty conduct is reasonable. Gregory v. Anderson, 14 Wis. 2d 130 (1961). "The reasonableness of such a rule must be tested as of the time of its adoption. It is a reasonable rule if violation is reasonably likely to harm the employer's business interests." Gregory at 138.

Residency requirement for municipal employees are constitutional and legally permissible. Eastman v. City of Madison, 117 Wis. 2d 106 (App. 1983). Some residency requirements may even be legitimately adopted as city ordinances. However, if a residency policy is not embodied in a collective bargaining agreement or a city ordinance, and the employer fails to present evidence regarding why it was reasonable to restrict where the employee could live and why violation of its policy was likely to harm its interests, unemployment benefits are awarded to the employee. Other rules are subject to the same analysis. Is restricting an employee from drinking beer on the weekends likely to protect the employer's business interests? Probably not.

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

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Alan C. Olson & Associates | 2880 S Moorland Rd | New Berlin, WI 53151
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