I was recently going through some old training material that I used when I was first starting out those “oh so many years ago,” and discovered some unemployment material that I thought might be helpful. The first section was titled “Were you discharged in a manner disqualifying you from unemployment benefits?” The manual, which was put out by the state, breaks it down into two categories: deliberate misconduct and rules violations cases. In the first category of deliberate misconduct, the employee doesn’t get disqualified unless the employer can show, by a preponderance of the evidence, a legal term that loosely means “more likely than not” that the employee engaged in deliberate misconduct in willful disregard of the Employer’s interest. The guide makes a point of explaining that the terms “deliberate misconduct” and “willful disregard” are two separate concepts, and that the employer has the burden of proof on both of these issues. Specifically, the employer has to provide evidence as to the employee’s state of mind at the time of the alleged misconduct in order to show that the conduct was “deliberate” and also to show that it was with “willful disregard” of the employer’s interest. This, for obvious reasons, can be difficult to show since evidence of someone’s state of mind can be difficult to come up with.
Examples of state of mind evidence include testimony of someone who had first hand knowledge of the events, or contemporaneous writings that detail the actions.
Deliberate misconduct is defined as conduct that is intentional, and disregards the standards that an employer has a right to expect. The standards can be established by rule, policy, warnings, or direct orders. Mere unsatisfactory performance is not enough though, unless the employer can prove that the conduct is intentional.
The second category is, “Was the employee terminated for a rule violation?” If this is the theory of the case, the employer must show that the employee knew what the rule was, that the rule was reasonable, and that the rule is uniformly enforced. It is important to note, however, that if the employee’s rule violation was performance in nature, for example an employee, in spite of his or her best efforts, doesn’t meet a uniformly enforced quota of production, the employee is not disqualified from receiving the benefits.
Hopefully, the above description is helpful. I recognize, however, that some of these distinctions can be subtle, and/or confusing. If you are an employer trying to win one of these cases, or an employee who has to go to a hearing, it is recommended that you seek the advise of an experienced employment attorney.
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