Tips & info

A Question of Misconduct

April 2006

Misconduct is generally defined as a deliberate or willful act within an employee's control for which the employee knew or should have known he might be discharged. States generally deny or limit benefits to employees who are discharged for acts of misconduct, however, the burden of proof will always be on the employer. Below are questions that may have to be answered before a disqualification for misconduct is imposed.

  • Was the claimant aware of the consequences of his actions?
  • Were the claimant's actions within his control?
  • Were the claimant's actions deliberate or willful? (For example, absences attributable to bona fide illness are generally not regarded as misconduct.)
  • Was the employee warned prior to discharge? (Usually, lateness or absenteeism without good cause must be supported by progressive disciplinary notices if a finding of misconduct is to be upheld.)
  • Was the violation serious enough to warrant a discharge? (An isolated minor act or incident of poor judgment will not rise to the level of misconduct in most states.)
  • Did the discharge occur immediately subsequent to the final incident? (If there is not reasonable proximity in time between the final incident and the date of discharge, it may create doubt about the reason for termination.)
  • Were there any mitigating circumstances, and was the employee given the opportunity to explain them? (For example, lateness because of a verifiable accident is normally not misconduct; similarly, absenteeism attributable to illness is not misconduct unless there are other issues, e.g., failure to call in or produce required medical documentation.)

Note: Winning misconduct cases depends on good documentation and well conceived personnel practices.