KNOW THE LAW – Unemployment Benefits
This question was answered by Katie Kiernan of the McLane Law Firm
September 19, 2011
Published in the Union Leader
Q. As an employer, I understand that a former employee will be ineligible for unemployment benefits if he or she was terminated due to acts of “misconduct.” But what does that really mean?
A.Terminations for “misconduct” are defined under New Hampshire’s Unemployment Statute, NH RSA 282:A. While employers themselves do not make a determination of “misconduct,” rather providing all relevant information to the Department of Employment Security to do so, it is helpful for employers to understand the definition provided by the Supreme Court in order to fully grasp both the issues and the likely outcome of an unemployment proceeding.
The New Hampshire Supreme Court has adopted a two-pronged definition of “misconduct.” First, “isolated or inadvertent instances of unsatisfactory conduct are not sufficient for a finding of misconduct, but recurring careless or negligent acts do constitute misconduct.” Essentially, simply because an employee consistently performs below average is not sufficient for a finding of “misconduct.” However, the second prong of the definition finds that “a single act may be sufficient to support a finding of misconduct if it is a deliberate violation of a company rule that is reasonably designed to protect the legitimate interests of the employer.”
In its recent decision in Appeal of Brooks, the New Hampshire Supreme Court found that such a single act need not violate a particular policy of the employer, nor must the act violate a policy of which the employee had been informed, for the act to constitute “misconduct. This case provides a practical example of how a reviewing court would determine whether or not an employee’s action rise to the level of “misconduct” such that they are ineligible for unemployment benefits.
The claimant worked for a plumbing and heating business. On Friday afternoon, the claimant was asked to work “on-call” to cover any emergencies that might come up over the weekend. At the end of the day on that Friday, the claimant went home and consumed alcohol, although there was dispute as to how much. When the claimant responded to an emergency call that evening, customers complained that he appeared intoxicated and was behaving poorly. The Supreme Court found that this one-time activity was of the kind contemplated under the second prong of the “misconduct” definition – one single act that was a deliberate violation of a company rule.
This example should provide some clarity around the Supreme Court’s definition.
Katie Kiernan can be reached at katie.kiernan@mclane.com.
Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
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