In yesterday’s post, my colleague Chris Engler discussed the “wilful” misconduct standard and how it applies when your employee is otherwise eligible to receive unemployment compensation.
Today, Chris returns and has a quick quiz to review some recent cases of how this standard has been applied.
So, you think you know what the “wilful” misconduct standard is. But do you know how it is applied?
Consider a handful of cases decided by the Connecticut Unemployment Board of Review in the last few weeks, and try to guess how they came out under the standards we outlined in yesterday’s post.
Case 1: A box truck driver had signed a last-chance agreement under which he would be terminated if he failed a drug or alcohol test. The driver, who had admitted to an opiate addiction, later tested positive for cocaine. Because this violated the last chance agreement, he was fired.
(Decision: not disqualified, because his addiction was the basis for his misconduct.)
Case 2: A cleaner at a gym was fired for repeatedly failing to clean properly and generally being negligent in his duties. He explained that he did his best and occasionally missed candy wrappers and spills.
(Decision: disqualified, due to his “history of loafing” and “pattern of negligence.”)
Case 3: A nursing facility employee was discharged for allowing a patient to possess cigarettes inside the facility. The decision does not mention whether the patient ever used the cigarettes. The facility prohibited possession of cigarettes due to the risk of fire near patients’ oxygen machines, but the employee said that the policy was not usually enforced.
(Decision: disqualified, because the employee knew of the policy and the seriousness of the risk.)
Case 4: An operator of a picker (similar to a forklift) crashed his machine twice in four months – once into another picker and once into a pole. The employer’s policy called for discharge after two at-fault accidents.
(Decision: not disqualified, because the Board consider the employee merely negligent.)
Case 5: A restaurant server was fired after she engaged in a conversation with a customer and the restaurant’s bartender about the customer’s inability to pay a tip. The record is not clear whether the server was argumentative with the customer.
(Decision: disqualified, because she was “recklessly indifferent to the employer’s interests.”)
As these cases indicate, it is difficult to identify a pattern or generalize about the outcome of unemployment cases.
However, because the Board of Review’s inquiries are so fact-specific, it is important that the employer properly investigate and document the facts underlying its decision to fire.
That might be the difference between a clean break and an ongoing financial obligation.