Misconduct and Unemployment Benefits


According to figures released by the U.S. Department of Labor, employers can expect to see unemployment taxes rise by an average of 34 percent over 2009 costs. Consequently, employers who may have previously allowed claims to go uncontested will be more likely to object to a borderline case of misconduct. While there are certain general rules, misconduct is not a black and white concept. Employers will have more motivation to fight potential claims by proving that an applicant's employment was terminated for misconduct.

Unemployment Benefits

An employee who is laid off is almost always entitled to unemployment insurance. But employees who were fired or who resigned must meet certain tests to be considered eligible. The specifics of unemployment legislation vary by state, but most states have a similar baseline for claims. An employee who resigns must demonstrate that there was good cause for the resignation. NOLO reports that what an individual employee deems a good reason may not meet the test under the law. Cases where there were "intolerable working conditions," or where the employee was actively instructed to resign, would qualify in most states, and spousal relocation or a family crisis qualify in some states. A fired employee may still be eligible for benefits, but only if he was not terminated for misconduct.

Termination for Misconduct

Employees can still claim unemployment benefits if they have been fired for poor performance or simply being a bad fit for the job. Minor infractions, such as unintentional mistakes, non work-related off-duty conduct and petty disagreements with colleagues also are unlikely to be considered misconduct. Misconduct typically refers to incidents that have a significant impact on the employer's interests and that are intentionally undertaken by the employee, such as fraud, dishonesty, sexual harassment of a coworker or violence in the workplace. Even jokes about violence in the workplace can be considered misconduct, as the 2005 decision in Medeiros v. Hawaii Department of Labor and Industrial Relations confirmed.

Simple Misconduct and Gross Misconduct

Many states make a distinction between lesser forms of misconduct -- often termed "simple misconduct" -- and more egregious incidences known as "gross misconduct." Simple misconduct generally includes violations such as tardiness and insubordination, whereas gross misconduct might constitute theft from the company, extreme negligence or intentional damage to property. Some states will suspend an individual's entitlement to unemployment benefits for several weeks for simple misconduct but completely disqualify an individual for gross misconduct, until he gets another job and earns enough to qualify for the program again.

Unemployment Appeal Hearing

Once an applicant files a claim, the employer may object before the initial decision is made. If either party disagrees with the decision, they have the ability to file an appeal and attend a hearing. The hearing is frequently conducted in front of an administrative law judge and parties have the option to bring an attorney, although this is not required. Parties may introduce exhibits and testimony, but the hearing is less formal than a courtroom trial. For example, hearsay may be introduced, but the hearing officer will weigh the testimony accordingly. The hearing provides the opportunity for the parties to prove, or disprove, a charge of misconduct.

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