What is the definition of misconduct? Does misconduct disqualify a former employee from unemployment benefits?
The necessary elements needed in order to establish disqualifying misconduct are knowledge, culpability and control:
- Knowledge - A discharge should not come as a surprise. The worker must have an understanding of the behavior that his or her employer expected and be aware of the likely consequences of failing to meet the employer's expectations. Without a clear understanding of the expected behavior, it is often not possible to prove that the employee's actions were willful (this is why we suggested earlier that you make written records of all orientation, training and counseling sessions).
- Culpability - The employer must have been damaged. Does the objectionable action (or inaction) have a harmful (or potentially damaging) impact on the employer?
- Control - The employee must have had the ability to do otherwise. Did the worker have command over the situation? The worker must have had sufficient control over his or her actions to prevent the final incident.
Isolated incidents of poor judgment are normally not disqualifying. The employer must be prepared to show that the former employee's behavior is part of a pattern of misconduct. Misconduct that is part of a pattern by the employee, or which is considered especially egregious or potentially dangerous by the judge, will usually result in the employee's disqualification.
Disclaimer: The information contained in the examples given on this page is general in nature and is not intended as legal advice. There are no guarantees that a particular state unemployment adjudicator will rule as others have in the cited examples. Individuals seeking legal advice concerning the handling of similar matters should consult with their attorney, rather than relying upon the information given.
The purpose of this document is to educate clients and potential clients about unemployment compensation. While some effort has been made to address the many differences in laws and procedures in the 53 different jurisdictions (each of the fifty states plus Puerto Rico, Washington D.C. and the Virgin Islands), the primary purpose of this presentation is to review some basic principles shared by many jurisdictions.