In unemployment misconduct cases, what factors are considered?

Judges consider several factors at unemployment insurance misconduct hearings.

1.  Employment history. Have you been disciplined by this employer before? Have you been disciplined for anything similar before? Were you aware that your job was in jeopardy or that you could be terminated for one more infraction? These are all typical questions posed at many unemployment hearings. A single isolated incident of insubordination or one policy violation alone is typically not enough to establish misconduct, unless the circumstances are particularly severe.

2.  Harm. Did your conduct cause harm to the employer? If you violated a work rule, but it resulted in no perceptible harm or injury to the employer, it is less likely to result in a finding of misconduct.

3.  Intent. Did you intentionally disregard the employer’s interests? Should you, as a reasonable person, have known that your behavior violated an employment standard? This is the key in unemployment misconduct cases. It is the employer’s burden to prove misconduct. Absent a showing of your ill intent, the employer typically will not prevail. It is very difficult for an employer to prove your intentions without an admission from you.

4.  Mitigating circumstances. Are there any circumstances that explain your behavior? Perhaps you missed work and failed to call in, but you were incapacitated by an illness or injury. Perhaps you left work without permission, but you had to pick up your sick kids from school. Perhaps you pushed somebody, but only in self-defense when they punched you. Under some circumstances, employees avoid a finding of misconduct even if they clearly violated the written rules of the employer.

5.  Publication and reasonableness of the rule. All employers have rules. Many times those rules are implied and not explicitly outlined in a handbook or other document, such as: no stealing, no sleeping on the job, and no fighting. Other rules are less obvious and must be published and presented to the employees in order to have force in the unemployment context. And even if an employer proves that an employee breaks its internal rules, it still has the burden to establish that its rules are reasonable. The employer also has the burden to prove to the UI division, typically by presenting a signed acknowledgement form, that the employee was aware of the rules.

6.  Evenhandedness. Whether the employer enforces its employment rules evenhandedly against all employees is another factor. If several comparably situation employees engage in the same or very similar conduct, which results in termination for some but not all employees, the question becomes: how can it be misconduct if not all the employees are discharged for the same behavior?

7.  Alternative discharge theories. Did the employer change its reasonsyou’re your discharge at any point? Is the company struggling financially? Did you take FMLA leave or complain about discrimination recently? Did you refuse to follow your employer’s instructions to do something illegal or blow the whistle? Does your manager simply not like you? Reasons for your discharge different from the employer’s articulated reason can be introduced and can be persuasive in unemployment cases.

8.  Quality of the evidence. Often employers present hearsay evidence – evidence from second-hand witnesses. Although hearsay evidence is usually admissible in unemployment hearings, it cannot be relied upon as the sole source of evidence. A Human Resources employee lacking firsthand evidence may be the only person contesting your claim for benefits at a hearing. If you deny and rebut the HR representative’s second-hand account, the employer typically cannot prevail, provided you appear credible.

9.  Credibility. Can you remember and articulate details? Are you hedging against yourself in your testimony? Do you present yourself well and appear professional? Have you contradicted yourself or changed your story at any point? Credibility is often the only factor in a contested unemployment case where the employer and employee tell different stories. Because of the burden of proof is on the employer and it is presumed that the employee is entitled to benefits, you, the employee, get the tiebreaker.

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Attorney Nicholas M. McLeod is an associate attorney with Alan C. Olson & Associates, S.C. Please contact him at: [email protected] .

Watch Attorney McLeod in a PBS special about unemployment insurance here.


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