commentator (or anyone) - re: "misconduct"

[applecruncher]

What is the name of your state (only U.S. law)? This happened in Ohio

Reading another thread reminded me of something (but I didn’t want to hijack).

Specifically, what constitutes “misconduct” from the UI perspective? Of course, I know it includes theft, fighting, doing drugs or consuming alcohol on the job, deliberate destruction of property, cursing someone out, etc.

But the reason I’m asking is:
Many years ago I worked in what was called Personnel, and I saw the entire scenario. A supervisor called a co-worker (a secretary who also worked in Personnel) into his office. (Her attendance and performance had been deteriorating for months, and she was seeing a therapist). Something he said upset her. Supervisor told her to “calm down”. Suddenly, she started shouting, picked up a stapler from supv’s desktop, and threw it against the wall with enough force to break it in half. Everyone (incluidng me) scattered, another supervisor and to company nurse ran in to help remove her from the area, she was taken to a doctor, put on a paid leave of absence.

A couple weeks later she was called in for a meeting with Dept. Director and fired. However, the company went along with her unemployment. They told UI that she was fired because 1) her personal problems interfered with her performance and 2) because of her conduct (outburst) when the supervisor tried to talk to her.

(On the day of the incident the supervisor was not going to fire her . . .he was simply denying her request for some time off, and trying to explain why).

I would think the outburst and throwing an object (albeit against the wall) would be misconduct. What are your thoughts on this?

 

[Zigner]

What is the name of your state (only U.S. law)? This happened in Ohio

Reading another thread reminded me of something (but I didn’t want to hijack).

Specifically, what constitutes “misconduct” from the UI perspective? Of course, I know it includes theft, fighting, doing drugs or consuming alcohol on the job, deliberate destruction of property, cursing someone out, etc.

But the reason I’m asking is:
Many years ago I worked in what was called Personnel, and I saw the entire scenario. A supervisor called a co-worker (a secretary who also worked in Personnel) into his office. (Her attendance and performance had been deteriorating for months, and she was seeing a therapist). Something he said upset her. Supervisor told her to “calm down”. Suddenly, she started shouting, picked up a stapler from supv’s desktop, and threw it against the wall with enough force to break it in half. Everyone (incluidng me) scattered, another supervisor and to company nurse ran in to help remove her from the area, she was taken to a doctor, put on a paid leave of absence.

A couple weeks later she was called in for a meeting with Dept. Director and fired. However, the company went along with her unemployment. They told UI that she was fired because 1) her personal problems interfered with her performance and 2) because of her conduct (outburst) when the supervisor tried to talk to her.

(On the day of the incident the supervisor was not going to fire her . . .he was simply denying her request for some time off, and trying to explain why).

I would think the outburst and throwing an object (albeit against the wall) would be misconduct. What are your thoughts on this?

Yes, it was misconduct. However, the company chose to ignore that misconduct. Had they fired her on the spot, she would (likely) have been SOL.

It sounds like the company you worked for was an upstanding company that really cared about their employees.

 

[cbg]

Commentator is the expert. However, a friend of mine in another state (neither mine, Commentator's, applecruncher's nor Zigner's) had two cases that lead me to wonder just WHAT constitutes misconduct in her state:

1.) At a staff party, the staff member got drunk and was dancing on the tables, eventually mooning the wife of the CEO. Unemployment was approved because there were no notices that such conduct was prohibited and that employees engaging in it would be fired.

2.) An employee was caught red-handed stealing. I forget the exact amount but it was substantial. Unemployment was approved because it was a first offense and the employee had received no prior warnings.

The employer appealed both cases. Employer prevailed in the second, lost in the first.

 

[applecruncher]

1.) At a staff party, the staff member got drunk and was dancing on the tables, eventually mooning the wife of the CEO. Unemployment was approved because there were no notices that such conduct was prohibited and that employees engaging in it would be fired.

Good grief. As if a notice needs to be posted prohibiting "mooning".

While we're at it, I'm curious as to what constitutes "misconduct" (in employment) vs "gross misconduct". I've waded thru a lot of stuff on google, but I'm still unclear. Examples?

 

[Beth3]

States don't just use a misconduct standard. It has to be "willful" or "gross" misconduct. Now what exactly constitues that is often a "your guess is as good as mine" situation.

Clearly shouting at the boss and then throwing a stapler against a wall is misconduct. Whether it's willful/gross misconduct under a State's UC reg's is a guessing game.

I've seen unemployment denied to terminated employees I thought likely would get it and unemployment granted to ex-employees I thought couldn't possibly be approved.

 

[swalsh411]

No law is going to encompass every possible misconduct sitiation. It's a judgement call and ultimately if either party appealed all the way would be decided by a judge of panel of judges depending on how that State's unemployment system is set up.

A good rule of thumb is "did this employee break a rule that any reasonable person SHOULD have known was a rule even if they were never explcitly told it was a rule?" For example, showing up drunk to work, fighting, or major theft. This can get dicey however because if the employer tolerated a certain behavior in others (for example, taking home small amounts of office supplies or arriving late) but fired a particular employee for doing that same thing, that can be a defense against misconduct.

OR

"did this employee receive multiple warnings and chances to correct their behavior AND could have reasonably done so AND the expectation was reasonable AND the employee choose not to). Tardiness and is a good example of this. However if the employer's rule was something silly like "you may not rent any movies starring Pauley Shore" then that would not be misconduct because the policy does have any legitimate business purpose. Having said that, if the employee tried their best but simply could not meet the standard (had to average 50 sales a month but only managed 40) that will generally not be misconduct.

So in other words there is no single standard or definition you can point to that is going to address every situation.

 

[csi7]

Having fought a misconduct termination case, and succeeded, due to the way the employer representative represented the misconduct charge, it depends on each individual case.
The supervisor refused to testify in the unemployment hearing according to the employer representative. However, the hearing officer had already continued the hearing once to allow the company further time to investigate the incident.
I was a witness to the misconduct.
I reported it.
The supervisor refused to submit a report.
The supervisor was placed on an unpaid leave of absence.
The supervisor revealed after the hearing was over that he didn't want the person who displayed the misconduct to be fired.
The supervisor felt I was expendable.
Commentator helped me keep strictly to the facts that I could prove through the handbook, the written and "unwritten" policies of the company.
The employee was terminated six weeks later for an incident witnessed and reported to an outside agency.

 

[Free_Advice]

Commentator is the expert. However, a friend of mine in another state (neither mine, Commentator's, applecruncher's nor Zigner's) had two cases that lead me to wonder just WHAT constitutes misconduct in her state:

Best bet if for the OP to go to google scholar / lexis & do some R&D of his/her own.

In that way they will learn & have court citations to discuss during the hearing process.

The OP will only have 1 shot .. best to be prepared. The employer generally does not prepare well.

 

[Zigner]

Best bet if for the OP to go to google scholar / lexis & do some R&D of his/her own.

In that way they will learn & have court citations to discuss during the hearing process.

The OP will only have 1 shot .. best to be prepared. The employer generally does not prepare well.

Are you daft?

It's obvious that you don't READ threads.

 

[cbg]

Did you read my entire post? Including the cases I was describing?

Truly, a lot of the time it matters whether or not the hearing officer had a fight with his wife the night before, or whether he got the last jelly donut in the break room just before the hearing. As a colleague of mine says regularly, generally the person who brasses off the HO the most, loses.

 

[applecruncher]

Best bet if for the OP to go to google scholar / lexis & do some R&D of his/her own.

In that way they will learn & have court citations to discuss during the hearing process.

The OP will only have 1 shot .. best to be prepared. The employer generally does not prepare well.

What are you talking about? There is no hearing and this incident happened decades ago. This thread is just a discussion about what may or may not be misconduct in the eyes of the unemployment commission.

 

[Free_Advice]

What are you talking about? There is no hearing and this incident happened decades ago. This thread is just a discussion about what may or may not be misconduct in the eyes of the unemployment commission.

Yes, and I said to review this with google scholar ... you no like that advice?

 

[commentator]

Best bet if for the OP to go to google scholar / lexis & do some R&D of his/her own.

In that way they will learn & have court citations to discuss during the hearing process.

The OP will only have 1 shot .. best to be prepared. The employer generally does not prepare well.

Okay, here in the real world, swalsh is right on the money. When training people to do hearings, unemployment law generally looks at gross misconduct as something so bad or inappropriate that any reasonable person would know better than to do it, even one time. It is somewhat subjective but after a while you can sort of sense the flavor of how it is going to go. General work related misconduct is something that the person has had prior warnings about, or had access to a strongly worded company policy about, in other words, they were fully aware that what they did was the wrong thing to do and might result in their firing.

In the "mooning" case, it would have an awful lot to do with whether it was work related. Even if you are a child molester or a father raper or mother stabber off the job, a person who has not committed job related misconduct cannot legitimately be fired for misconduct and denied unemployment benefit.

Mooning someone at a party may not have a lot do do with the person's on-the-job behavior, everyone else at this party may have been drunk as a skunk too, and misbehavior off the job and not in an official work situation is probably not going to be considered misconduct. There was a case I remember once where the company officials were partying with the staff at the bar after hours, and one of the staff members, quite intox, of course, told the boss to F---- off! This was in general, not job-related conversation, and she was terminated the next day due to his very hazy memory of what happened, and she was approved for benefits. While standing on a table mooning someone at work while on the clock would certainly be misconduct, being at a party with all the other employees and doing it would just be bad behavior, not work related misconduct.

The stapler situation.. ah yes, I've heard of stapler throwers before. Even thrown AT the person across the desk! But it would be looked at as whether or not the person was already in the termination process. In other words, as I've told employers, if the employee cut a real shine and cursed and threw things while they were being terminated, press civil charges against them. But that is still not going to be considered as the REASON they were terminated in the first place. But if a person is being given a warning, and they cut a big rusty and act very inappropriately, then that was the reason for their termination, and it will probably be judged to be gross misconduct. You know you're not supposed to throw staplers. DUH.

The ideal unemployment hearing situation is supposed to be user friendly. But I cannot emphasize strongly enough that going on line to get information and throwing a bunch of case law at the appeals official is not going to help as much as listening carefully and answering any and all questions thoughtfully and honestly.

But please, for heaven's sake, never never never go into a hearing and quote case law to a hearing judge, appeals officer, whatever they are called in your state. This is extremely offensive to the appeals officer, and will not benefit you at all, I promise! You are not Clarence Darrow, you do not have to argue your case with citations of other cases. You just tell what happened, in your own words, to the best of your abilities.

You can mold your presentation of the facts to your advantage if you are basically familiar with unemployment law, and either the employer or the claimant can do this. It is true, many employers are woefully uninformed about unemployment law and will not prepare adequately for a hearing, and this will put them at a disadvantage. But then, many times the employee is also in the same condition.

 

[applecruncher]

Thanks, interesting comments.

Even if you are a child molester or a father raper or mother stabber off the job, a person who has not committed job related misconduct cannot legitimately be fired for misconduct and denied unemployment benefit.

This thread I started really jogged my memory of the years I spent at that company. (It was/still is a very large corporation.) Earlier that same year (before the stapler thrower incident), I walked in one morning - keeping in mind I worked in "personnel" (now HR) - and there was a lot of huddling and whispering. A foreman had been arrested in the park the night before for indecent conduct. I'll skip the salacious details. He took a few days off, but wasn't fired.

More currently, a friend who works for govt told me about two high ranking managers who were arrested earlier this year for 'doing it' in a mall parking lot at 1:00AM. Both were married, but not to each other. There was an overly explicit write up - including their names and exact salaries - in the newspaper. There were not fired, but each was suspended for a couple weeks (not for what they did, but for not reporting the arrest to HR). Sheesh, the phrase "get a room" comes to mind.

 

[commentator]

There was actually a case that is often used in training to discuss this misconduct issue, it happened to occur in my area, and I knew the participants. Small business owner had a husband and wife both working for him. He was having an affair with the wife. Husband came home and caught the two of them together, shot and killed him. The business closed down.

Husband filed for and was approved to draw benefits while he was waiting to stand trial for the murder. It was determined that the murder of his employer was not a job related murder. He was technically out of work because the business closed, not because he'd killed his employer. Apparently, if they'd gotten into a disagreement at work, concerning a work related issue, and the shooting occurred, he might not have been able to receive benefits! Go figure that one!

But yes, even though someone has been accused of something really bad, or has even definitely done the really bad thing outside work, unless the misconduct was work related, the company will probably, if they decide to terminate the person, end up seeing the former employee approved for benefits. That is allowing of course that they are out of jail or prison and able and available for other work!

For many years there was a rumor around in the state's prison system here that people who were being released from prison were able to sign up for and receive unemployment benefits, based on their having made those license plates or ink pens or whatever in prison. Wasn't true, of course, but they sure were unhappy to hear it.