Unemployment Willful Misconduct

Employee Fighting

Have you received a Notice of Determination stating INELIGIBLE due to unemployment willful misconduct? Do you have an upcoming unemployment willful misconduct appeal hearing where misconduct is an issue?

What is unemployment willful misconduct?

Unemployment willful misconduct means your employer is accusing you of engaging in misconduct such as violating an employer’s policy, stealing, sleeping, cursing, violence, or other workplace infractions. Under the unemployment “willful misconduct” standard, an employee who is a below average performer and has made numerous costly mistakes at work should still be entitled to benefits, since his inability to perform the job does not fall under unemployment misconduct. However, we see unrepresented people lose even the best cases because of two main reasons. First, inexperienced claimants can not articulate their case to emphasize the important legal elements. Second, employers are extremely experienced, bring an unemployment misconduct lawyer, and therefore excel in producing documentation, witnesses, and other evidence that can destroy the credibility of the claimant or easily rebut claimant’s prima facie case.

How to win unemployment willful misconduct hearing?

It is important to understand that at your unemployment compensation appeal hearing, your employer has the burden of proving that you engaged in willful misconduct.  The employer must prove you willfully disregarded its interests or policies or willfully engaged in reckless behavior. It is common for employers to categorize very small incidents as major infractions in order to deny you unemployment compensation benefits.  A skilled unemployment lawyer can recognize if you did engage in misconduct and whether it rises to the level of willful misconduct. The first major objective is to prevent the employer from meeting its burden.  A skilled unemployment lawyer will present you with the strongest arguments to ensure the employer does not meet their burden. By successfully rebutting the elements of willful misconduct an employee may prevail at a UC hearing.

An employer must be prepared to prove that

  1. The employee intentionally engaged in conduct which was detrimental to employer’s interest;
  2. The conduct was material to the work;
  3. The conduct violated a standard which was uniformly and consistently applied by the employer;
  4. The conduct violated a standard which was reasonable.

Further, willful misconduct has been held to encompass,  (1) a deliberate violation of the employer’s rules, (2) a disregard of standards of behavior which the employer has a right to expect of an employee, (3) absenteeism and tardiness, and (4) negligence indicating an intentional disregard of the employer’s interest or of the employee’s duties and obligations to the employer.

Unemployment Misconduct: Deliberate violation of employer rules

Referee’s often look to direct violations of an employer’s rule to deny unemployment benefits. An employer’s rule can extremely easily be shown to exist, although often it does not “really” exist in practice, through testimony from the employer, supervisor, HR representative, employee handbook, and even just inferred by the Referee. It is this easy for the employer. If you do not quickly explain, making legally sufficient points, why willful misconduct does not apply, then you will most likely will be denied. But, even if there is a deliberate violation, there are certain exceptions to unemployment willful misconduct.

Unemployment Misconduct: Disregard of standards of behavior

There is certain conduct that, virtually by default, means that you are ineligible unless you can prove otherwise. This includes; discrimination, disloyalty, drug paraphernalia, drug use, extremely negligent acts, Failure to follow an employer’s instructions, falsifying information, fighting, intentionally breaching confidentiality, intoxication, job abandonment, Lying, offensive language, sex or self stimulation at work, sexually charged language, sleeping, stealing, theft, threatening language, or violence,abusive language. Once again, there are certain exceptions to standards of behavior.

Unemployment Misconduct: Absenteeism and tardiness

On paper, absenteeism and tardiness require several warnings, a final warnings, all in a short time-spawn, pursuant to a published employee handbook, that is applied consistently, reasonably, and fairly. However, these cases are often extremely difficult because of tangible bias toward employees who fail to come to work or do not arrive on time. In our experience, certain Referee’s go to great lengths, even assertively asking their own questions, to discover minor single flaw in a claimant’s case. In fact, there are cases where a  single absence was sufficient to show willful misconduct. Don’t be deceived into thinking that a mere misapplication of policy is enough to win an unemployment hearing. Among the other exceptions,  there are several unique exceptions such as; bad weather, civic duty, pre-conviction imprisonment, reasonable belief you had the day off, religious observances, or transportation.  

Unemployment Misconduct: Intentional disregard of the employer’s interest or of the employee’s duties and obligations to the employer

This is the “fall back” provision of unemployment willful misconduct. If no other category fits then a fact and circumstances inquiry is launched. General principles of employment are used for guidance and outcomes are largely determined based on which party is most prepared for the hearing.

Exceptions to unemployment willful misconduct

Although you may have violated your employer’s policy or engaged in some misconduct, it doesn’t mean you are going to be denied your unemployment benefits. Some, but certainly not all, ways to rebut the employer and prevail include asserting one of the following; accident, childcare family emergency, fear, good cause, illness, inconsistent application, injury, ignorance of rule, physical inability, or vagueness of rule. These are complex standards with years of case law behind them and are deceptively easy. If any claimant is arguing an exception, it means that by default, without proving the existence of an exception, claimant is ineligible for benefits.Since this is an onerous position to be in, you are best advised to contact an attorney.

Don’t hesitate, talk to an attorney: (412) 626-5626 or lawyer@lawkm.com

Specific Unemployment Issues

What type of legal help do you need? If you are not sure, call us at 412-626-5626

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