Dismissal for misconduct is one of the more commonly misunderstood aspects of the unemployment insurance program.  Historically, a large percentage of all employer appeals stem from discharge issues. The results of the appeal do not always satisfy the employer.

Based upon extensive discussions with employers, several recurring points of confusion are evident. This review will explore the unemployment issues surrounding the dismissal of an employee. The legal right of an employer to fire a worker is a separate issue, and is not considered here.

First, many employers discharge individuals for misconduct, but few know the legal definition of misconduct for unemployment purposes.  Case law defines misconduct as a substantial or intentional disregard of the employer's interests. The deliberate nature of the act is a crucial component of the definition.  For a definition of simple AND gross misconduct, click here.

In contrast, case law specifically exempts from the discharge of misconduct definition "inefficiency, unsatisfactory conduct, failure in performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion".

Ineptitude is not misconduct, nor an argument between employer and employee, nor a difference in work habits. An unintentional error or a temporary lapse of good judgment also is not misconduct.  For examples of misconduct, click here.

In addition, generally a single instance does not constitute misconduct except in extreme cases. (Arson, for example, is gross misconduct based upon a single incident.)  At least one warning must usually be issued for the specific behavior that eventually leads to a discharge.  For a definition of simple AND gross misconduct, click here. 

Warnings are important.  A warning for something else does not qualify.  If an employee receives a warning for lateness, but then is discharged for neglecting to follow safety standards, misconduct would probably not be found.  The initial warning for lateness is not the same as the actual reason for discharge (safety violations).  Employers who keep records of warnings provided usually prevail in supporting the discharge for misconduct.

Burden of proof in misconduct issues is placed upon the employer, who must show two things: deliberate disregard of the employer interests, and at least one prior warning for misconduct.

To meet this burden of proof, complete and accurate record keeping is essential.  Ideally, warning should be in writing, dated and signed by both the employer and employee. In case of a dispute over the issuance of a warning, the employee's signature on the warning constitutes clear evidence that he was indeed given a warning.

Warnings should clearly list the behaviors that are not acceptable. Citing specific recommendations on how to improve, and specific standards to be achieved, are also important. Incomplete or vague records seldom contain these essential items and will not generally meet the burden of proof requirement.

Finally, this proof must be provided to the Adjudication Unit or presented at a Administrative Law Judge appeal hearing. Failure to substantiate an allegation of misconduct with evidence or credible testimony will result in a determination in favor of the claimant. An employer must participate in the initial fact-finding process, as well as any appeals, or evidence will be lacking and the unemployment claim will be allowed.