Unemployment Hearing Case Review: Off-Duty Conduct
By Peg Elofson
Real Case Analysis: Claimant Testified she was Unaware that her Conviction Could Result in Discharge
The claimant was discharged for violation of off-duty conduct policy. She was disqualified from unemployment benefits upon a finding that she was discharged for misconduct connected with her work. She appealed. A hearing was scheduled before an administrative law judge (ALJ).
At the Hearing
The Employer’s Evidence: The employer testified the claimant was employed in a position that allowed her access to company credit accounts with high limits. The employer maintains a policy providing that some off-duty conduct, including conviction of a crime that affects the business or reflects badly upon the employer, could be grounds for termination. Pursuant to that policy, which the claimant had received at hire, the claimant reported to the employer that she’d been charged with embezzling from a civic organization. Later, the claimant reported she had been convicted of felony theft pursuant to a plea agreement. When the employer confirmed the conviction, the employer conducted a background check. Once it was confirmed the claimant had been convicted, she was discharged for violating the policy. The Claimant’s Evidence: The claimant testified that she had not received the employer’s policy and was unaware that her conviction could result in her discharge. She also testified that she believed the crime for which she was convicted was not work-related. Additionally, the claimant testified that she notified her employer of the charges three months prior to her discharge. She believed she would not be discharged for the conviction since she was not discharged after the charges.
The Hearing Decision
The ALJ found that the claimant was not discharged for misconduct connected with her work, and she was allowed benefits. The ALJ found that the claimant was not on notice that her off-duty conduct could result in her discharge. Because the employer failed to prove the claimant knowingly violated company policy, the employer failed to prove that her discharge was for misconduct connected with the work. The employer appealed. They argued the evidence presented at the hearing proved a knowing violation of policy. The claimant admitted in her testimony that she had attended yearly training during which the policy was presented.
The Board of Review Decision
The Board of Review (BOR) disagreed with the ALJ’s decision and reversed. The employer proved that the claimant was made aware of the employer’s policy through yearly training. The claimant was therefore aware that her conviction could result in her discharge. Additionally, the claimant’s conviction was found to be work-related. With access to her employer’s high limit credit accounts, the claimant was in a position of trust. The claimant’s actions breached the trust that must exist between the employer and the claimant. The Board found the claimant’s discharge was for misconduct connected with the work.
Off-duty conduct can be found to be misconduct connected with work.
In this case, the claimant was convicted of theft, so the employer was reasonably concerned the claimant could no longer be trusted with access to the employer’s credit accounts. The claimant’s actions therefore affected her ability to perform the duties of her position for the employer. Similar case? Prove the claimant’s actions off the job were so serious they affected, or could reasonably affect, the work.
In cases involving off-duty conduct, it is important to prove the claimant was reasonably aware that their actions off the job could affect their employment.
In this case, the employer proved that it maintained a policy regarding off-duty conduct, and that the claimant was aware of the policy. The employer was able to prove, therefore, that the claimant was aware her actions off the job could result in her discharge. What if you do not maintain a similar policy, but believe that off-duty conduct should be disqualifying? Be prepared to prove in some manner that the claimant was reasonably on notice that, at the time of any off-duty actions, (s)he was or should have been aware that that those actions could result in discharge.
Read more or download our new (and free) Unemployment Hearing Case Guide Book. We examine evidence from both the claimant and the employer in 12 unemployment hearing cases, giving you professional insight on the decisions handed down from the Administrative Law Judge and The Board of Review.
Please remember: Unemployment laws vary from state to state. The result in this case might be different from a case in your state. Also, always consult with your own legal counsel and advisors concerning your specific fact.