May 2017 Briefly: An Unemployment Case Analysis

May 22, 2017 Peg Elofson

Background

The claimant was discharged for using profane language at work. He was disqualified from benefits upon a finding that he was discharged for misconduct connected with the work.  The claimant appealed, and a hearing was scheduled before an administrative law judge.

At the Hearing

The Employer’s Evidence:  The witness for the employer, a retail store, testified that the employer maintains a policy the claimant received at hire prohibiting the use of profanity in the workplace.  The claimant had received a warning regarding his use of offensive language directed toward a coworker, and was informed that further violations of the policy could result in his discharge.  On the date of the final incident, the claimant was angry, complaining about a new timekeeping system to a coworker.  He called her “a … liar” and used significantly profane language.  The coworker and a witness to the conversation complained to management, and the claimant was discharged.
The Claimant’s Evidence: The claimant testified that he used profanity in the workplace, but he was not fully aware that it could lead to his discharge.  He testified that, despite the warning issued to him, he believed that the policy was not uniformly enforced – he believed this because his supervisor used profanity towards him frequently, and it did not appear that she was disciplined.  The claimant also overheard others using profanity in the break room without consequence.  The claimant testified that he did not file a complaint against his supervisor because he believed he would be retaliated against.

The Hearing Decision

The Administrative Law Judge (ALJ) found that the claimant was discharged for misconduct connected with the work, and he was disqualified from benefits. The ALJ found that the employer proved misconduct because they provided evidence regarding the final incident, and proved that the claimant was aware that his language could result in his discharge.  The claimant disagreed and appealed, arguing that he was not aware that the final incident could result in his discharge, and therefore his discharge was not for misconduct connected with the work.

The Board of Review Decision

The Board of Review (The Board) agreed with the ALJ’s decision and the claimant remained disqualified from benefits.  The Board found that the ALJ’s decision was reasonably based on the record of evidence.  The claimant offered no evidence outside of his opinion that the policy was not uniformly enforced.  He offered no evidence that the employer failed to act on knowledge of a policy violation.

Takeaways

  1. Profanity in the workplace can rise to the level of misconduct connected with the work. In this case, the employer, a retail store, maintained a policy prohibiting profanity.   A retail store has a significant interest in not offending its customers. In this case, the employer’s evidence and testimony proved the existence of the policy, the reason for the policy, and that the claimant was aware of the policy. As with any policy violation, it is critical to ensure that an employer presents evidence proving the existence of the policy and the claimant’s knowledge of it.
  2. If an employer does not enforce its policy uniformly, it may be difficult to prove a claimant had knowledge that a violation could result in his discharge. Knowledge that a policy violation could result in discharge is necessary in many of these types of cases. In this case, the claimant testified that he believed that the policy was not uniformly enforced because he heard others use profanity and did not believe that the others were similarly disciplined.  In this case, the only evidence the claimant offered to show that other violations were not treated similarly was his own opinion.  The claimant did not offer evidence or testimony to support it.  If the claimant had been able to prove that the employer condoned others’ use of profanity by not administering discipline, the claimant could have persuaded the ALJ that he was not reasonably aware that the final incident could result in his discharge.  If you believe a claimant will attempt the same or a similar argument in your case, be prepared to offer evidence and testimony that you uniformly enforce your policies, and when complaints are made, they are investigated and addressed as your policies dictate.

To learn how Equifax can help your organization with unemployment case management, contact Pete Krieshok at pete.krieshok@equifax.com.

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