Misconduct MC 255
This section discusses eligibility issues arising when the claimant was discharged because of alleged insubordination. What is commonly termed "insubordination" generally falls into one of the following four categories:
- Disobeying an employer's order or instruction
- Disputing or ridiculing authority
- Exceeding authority
- Using vulgar or profane language towards the supervisor
An employer's statement that a claimant was "insubordinate" is not enough, in and of itself, to support a finding of discharge for misconduct. The employer's statement is a conclusion, derived from his or her perception of what transpired, and represents only one viewpoint. The acts which led to the separation, and the claimant's reason for doing (or not doing) the acts will determine if insubordination exists in that separation.
Title 22, Section 1256-36(b) provides:
Implicit in the agreement of hire is the concept that an employee is subject to some degree of authority exercised by the employer or the employer’s representative. An employee is insubordinate if he or she intentionally disregards the employer's interest and wilfully violates the standard of behavior which the employer may rightfully expect of employees in any of the following ways:
- Refuses, without justification, to comply with the lawful and reasonable orders of the employer or the employer's representative . . . (Disobeying orders)
- Commits an act which exceeds the authority either expressly granted by the employer or impliedly created by failure of the employer to object to a particular course of conduct . . (Exceeding authority)
- Makes a statement or remark, which is not the result of an error in judgment, under the circumstances which damage or tend to damage the employer's interest. (Disputing or ridiculing authority)
- Addresses vulgar, profane, insulting, obscene, derogatory, or offensive language of a vile nature toward the employer or the employer's representative when such remarks are unjustified under the circumstances, and not within the normal exchange and customary good-natured banter between the employer or the employer's representative and the employee. (Vulgar or profane language)"
The same section of Title 22 also comments that:
Generally, insubordination requires cumulative acts with prior reprimands or warnings. However, a single act without prior reprimands or warnings can be insubordinate if the act is substantially detrimental to the employer's interest. If an employee is discharged after an act of disobedience of an employer’s reasonable order and that act is not of itself misconduct but is part of a prior pattern of cumulative acts of insubordinate conduct, the employer must have given prior reprimands or warnings for the acts in the prior pattern in order for the ultimate discharge to be for misconduct.
- Disobeying Orders
1. General Principles
Section 2856 of the California Labor Code provides:
An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.
According to Section 2856 of the California Labor Code and Section 1256-36 of Title 22, the following conditions must be established for a discharge for disobeying an employer's order or instruction to constitute misconduct.
- The employer's order was reasonable and lawful.
- The claimant's refusal was intentional.
- The claimant's refusal was unjustified.
- Whether the Employer's Order is Reasonable and Lawful
If the employer's order is reasonable and lawful, the claimant’s wilful disobedience without justification would constitute misconduct. In P-B-190, the claimant was a paint and processing utility man and was discharged for refusing to dust the fire extinguishers in his area. The Board found the claimant ineligible and stated that the employer's order was not unreasonable or unlawful.
What if the instruction is unreasonable or unlawful? Compliance is not required if the order is unlawful. Compliance is also not required if the order is unreasonable. According to Title 22, Section 1256-36(b)(1), the employer's order is unreasonable if:
- It is impossible for the employee to comply due to reasons such as physical limitation which are peculiar to the claimant.
- Its compliance would impose a new and unreasonable burden on the claimant.
- It does not relate to or affect the employer's business interests.
- Impossible to Comply
The order is unreasonable if the employer orders an employee who reports to work with his or her leg in a cast to carry heavy loads. Compliance will be impossible. If an employee has some health problems, such as a heart condition, a slipped disc, or a hernia, which are not apparent to the employer, the employee is expected to inform the employer of such problems. Failure to tell the employer or the employer's representative about the condition which prevents the employee from doing the assigned task will render the discharge for misconduct.
New and Unreasonable Burden
The employer's order is also unreasonable if it would impose a new and unreasonable burden on the employee.
Example 1 - New and Unreasonable Burden:
In Cerberonics v. CUIAB (1984), the claimant was employed by an employer who was bidding for the renewal of a government contract. A major criterion for selecting the successful bidder was its ability to perform. As part of the bidding process, the bidders were required to provide resumes of the personnel who would be doing the work. The employer felt it had the advantage of experienced personnel. In order not to lose this advantage, the employer notified key personnel it would be using their resumes and required these employees to sign a statement that the use of their resumes was permissible and the employee would not let his or her resume be used by anyone else seeking the contract. The claimant permitted the employer to use her resume in its bid, but refused to give the employer the exclusive right to use her resume. She therefore refused to sign the statement and was fired.
The court found the claimant eligible. The court held that an employee may seek gainful employment wherever it may be found, even with a competitor, and to deny this right would impose an unreasonable burden.
Example 2 - New and Unreasonable Burden:
The claimant was hired by a steel supply company as an outside salesperson on a straight commission basis. After a desk order clerk resigned, the claimant was assigned to work on the desk on a rotational basis without compensation. On several occasions the claimant refused to accept the assignment because his earnings would be reduced by the lack of contact with customers. Consequently the employer discharged the claimant.
The claimant's failure to comply with the order was not misconduct because the order imposed a new and unreasonable burden on the claimant.
Not Related to or Affecting Employer's Interests
When the claimant's noncompliance with the employer’s order does not disrupt the employer's business or cause dissatisfaction among the employees, there would be no misconduct.
Example - Employer's Interests Not Affected:
In P-B-183, the claimant had been employed as an office manager for the employer. He was interested in starting his own construction business, and had tentatively discussed the possibility of starting a new company with three other employees. The discussions had consisted of possibilities for financing the operation and of the claimant's qualifications. The discussions did not disrupt the employer's business or cause dissatisfaction among the employees. The employer told the claimant that he would have to forget about going into his own business and cease talking to the other employees or he would have to leave the employer's employment. The claimant refused to stop his activities and the employer requested his resignation. The Board found the claimant eligible and stated:
[I]n this case, the claimant's conduct was not such that it had interfered with the orderly conduct of the employer's business or that the employer’s order was in any way necessary to protect or preserve its business. The evidence shows that, whatever may have been the claimant’s intentions with respect to starting his own firm, he and the other employees involved had always performed their duties for the employer in a satisfactory manner.
Care should be taken when considering if the employer’s interests would be affected or not. The harm may not be limited to "immediate and direct economic consequences," as pointed out by the court in the following case.
Example - No Immediate Harm:
In Rowe v. Hansen (Third Appellate District, 1974), the claimant, a hostess-cashier in a restaurant, was scheduled to work as a hostess with periodic relieving of the cashiers on the day of discharge. She was suffering from a cold, and wore a sweater as required by the conditions of the particular duty station at which she was working at the time. Late in the shift she had the sweater draped around her shoulders, with the sleeves hanging loose. Her supervisor told her to "put the sweater on or take it off." The claimant responded that she was not the supervisor's child, and began to raise her voice. There were customers in the immediate vicinity; to avoid an argument and public display, the supervisor advised the claimant "to go on home." At that point the supervisor had no intention of discharging the claimant. The claimant replied that she would not leave; after thinking it over for two or three minutes, the supervisor returned to the claimant and discharged her.
The employer's rules required that, if sweaters were worn at work, the arms be in the sleeves in order to prevent contamination of food or drink by loose sleeves. The claimant had been told twice before, on the same evening in question to put her arms in the sleeves, and had complied. The claimant had had prior warnings for unauthorized leaving of work before the end of the shift, consuming food or beverage while on duty, smoking in an unauthorized area, sitting with customers while on duty, leaving the cash register unsecured and unattended, taking extended breaks, reading at the hostess stand, being out of uniform, and improperly seating customers in a closed station, the last violation occurring only two days before. The claimant had had both oral and written warnings.
One of the claimant's contentions that the discharge was not for misconduct is that there is no evidence of injury to the employer's interests.
In its decision, the Court stated:
Petitioner does not challenge the reasonableness nor the propriety of the orders and in the circumstances such a challenge would necessarily be unavailing. She was aware of the rule regarding sweaters and had on her supervisor's request twice complied with it the very day of the incident. The order to her was a reasonable solution to a problem created entirely by her own obduracy. . . . The record is devoid of evidence of immediate harm to the employer's economic interests. There was uncontradicted evidence that the incident did not create an obvious disturbance in the restaurant. There was no evidence of a loss of business as a direct result thereof. However, such harm as petitioner contends must be shown cannot reasonably be limited to immediate and direct economic consequences. When the authority of those in whom the employer has confided responsibility for the day-to-day operation of the business is flouted, the interests of the employer suffer.
- It is impossible for the employee to comply due to reasons such as physical limitation which are peculiar to the claimant.
- Whether the Claimant's Disobedience is Wilful
For the discharge to be for misconduct, the claimant must wilfully disobey the order. Title 22, Section 1256-36 (COMMENTS) provides some guidelines on this issue. It states:
The element of willfulness exists if the employee has a basic understanding of the order and knowingly fails to comply. The employee need not thoroughly comprehend the order, but merely understand the essence of the act expected.
What is required is that the claimant has a basic understanding of the order. There may be occasions when the claimant does not have this basic understanding, and the resultant discharge would not be for misconduct. These occasions arise when the claimant, for example, does not understand the order due to language problems. If the claimant has a basic understanding and chooses not to comply with a reasonable order without justification, the discharge would be for misconduct.
Example - Wilful Disobedience of Order:
In P-B-190, the claimant was a paint and processing utility man. About three weeks before his discharge, the claimant was requested by his leadman to dust the fire extinguishers in his area. His leadman had supervisory duties but no disciplinary power. The claimant had been in that department eight months and had never before been asked to dust the fire extinguishers. He continued to clean the floor until his break time, when he could contact his union job steward. The job steward informed him that the work was outside his classification and should be performed by a fireman. The claimant then returned to inform his leadman that the work was out of his classification.
About two and a half weeks later, three days before his discharge, his leadman again asked him to dust the fire extinguishers. The claimant continued to mask parts for painting and when he finished the paint preparation, the leadman again asked him to dust the fire extinguishers. The claimant refused. The leadman reported the situation to the assistant foreman, who then asked the claimant to dust the fire extinguishers. He again refused, stating that the duty was outside his job classification. The assistant foreman discussed the matter with the plant labor relations representative before again asking the claimant to take care of the fire extinguishers (the fifth request). The claimant again refused, and was discharged.
The claimant's job description did not include dusting fire extinguishers, but neither did it include many other jobs which the claimant routinely performed. It was "well-understood "company policy that employees were responsible for keeping their work areas clean, and one of the claimant's duties was to dust the bin in stock clerk production, where he worked. Six other employees in his classification dusted fire extinguishers with or without an employer request. The Board found the claimant ineligible and stated:
This Board has consistently adhered to the view that deliberate disobedience of lawful and reasonable instructions is misconduct and that if employees doubt the reasonableness or legality of supervisor's instructions, they should seek redress through other than disobedience.
In the present case, it is our opinion that the instruction to the claimant to dust the fire extinguishers in his work area was not unreasonable or unlawful and could readily have been performed along with his other duties, which included dusting and sweeping. He deliberately refused to obey this instruction on five separate occasions, persisting in his refusal even after he was warned of the serious consequences which would result. Under these circumstances, it is our opinion... that the claimant was discharged for misconduct...
- Whether the Claimant is Justified in Disobeying
As discussed above, noncompliance with an employer's order is justified if the order is unreasonable or unlawful. Noncompliance is also justified, according to Title 22, Section 1256-36, if the claimant:
- Reasonably and in good faith believes compliance would result in a violation of the law.
However, the claimant is required, in this situation, to object or make a reasonable effort to object to the employer. If he or she concludes solely on his or her own judgment that an order is illegal and does not object to the employer as to the legality of the order, the discharge for noncompliance would be for misconduct.
Example - Belief that Compliance Would Violate the Law:
The claimant, a supervisor in charge of production, had authority to hire and fire workers in her unit. On her last day of work the claimant was instructed by the employer, "Fire the girl that's walking towards you. Do it right now and don't ask any questions." The claimant felt the worker was efficient and quiet, and knew of no reason why the employer wanted her discharged.
The claimant believed that the worker was being discharged because she was a union member. The employer had told the claimant, at the time of hire, that he wanted no unionization of his plant. Realizing that a discharge on such grounds was in violation of the National Labor Relations Act, she refused to discharge the employee and was, herself, discharged for insubordination.
The claimant contends that obedience to the instructions of her employer to discharge the employee in question would have required her to participate in an illegal act and that her refusal was justified.
The legality of the order depended entirely upon the reason which prompted the employer to issue the instruction. It is clear from the claimant’s statements that the employer gave her no reason for the discharge of the employee. Any conclusion the claimant reached in the matter was based on speculation and not confirmed by the employer.
The discharge was for misconduct because the claimant’s belief was founded on "conjecture and speculation." Moreover, she did not raise her objection to the employer.
Reasonably believes compliance with the order would cause an undue risk of injury or illness.
In Moore/Whelan v. CUIAB (1985) it was held that a worker has the right to independently evaluate the safety of a potentially hazardous work environment, and that where a claimant's refusal to comply with a work order is based on a reasonable, good faith, and honest fear of harm to his or her health and safety, the refusal is for good cause and the resulting discharge is not for misconduct. In that case, the claimants had a reasonable fear of being exposed to radiation. They refused to work in an area where they could be exposed and were terminated. The court held that the claimants were not discharged for misconduct.
If the claimant has a reasonable and good faith belief that compliance with the employer's order would jeopardize others' health, the discharge will also not be for misconduct.
Example - Fear for Others' Health:
In Amador v. CUIAB (California Supreme Court, 1984),the claimant was one of two histologists employed by a hospital, preparing tissue samples for microscopic analysis by pathologists. She took her training at Stanford Hospital and was licensed as a histotechnician. She had been employed for four years by Stanford and Oxford University Hospitals prior to her last employment.
About six months after she started work with her last employer, two doctors asked her on several occasions to perform a procedure known as "grosscutting," which consisted of the selection and removal of small tissue samples from larger specimens taken from a patient by a doctor. On the basis of the microscopic examination of the samples, a pathologist would diagnose the patient's condition. The claimant refused to grosscut from live patients on the basis that this procedure exceeded her capabilities as a histotechnician, and that at Stanford and Oxford, histotechnicians had not been permitted to perform grosscutting. Based on her experience with her two prior hospitals, she believed that such life-and death matters should be handled by physicians or specially trained technicians. She did not object to grosscutting on organs taken from cadavers, nor did she refuse to process small-sized specimens given to her for histology by doctors.
For two years her employer respected her objection, until the other histotechnician complained about having to do all of the grosscutting. Again asked to do grosscutting, the claimant refused and was subsequently discharged.
The claimant presented signed statements from two outside pathologists, one her pathology professor at Stanford and the other a pathologist with whom she had worked at Stanford Hospital; these physicians supported her refusal to perform the grosscutting. As a part of the record, the recruitment notice from the hospital was admitted; it described the positions as: "Under supervision . . . ."
In its decision, the Supreme Court stated:
It can no longer be maintained that a 'diligent’ worker is one who blindly follows his or her employer’s orders regardless of the potential consequences. The health hazards of the modern work environment - to employees, consumers, and the population at large - are serious and widespread, and the record of employers in controlling those hazards does not inspire such confidence that a reasonable worker can be expected to trust invariably his or her employer's judgment.
Accordingly, this court holds that a worker who has been discharged for wilfully refusing to perform work which she reasonably and in good faith believed would jeopardize the health of others has not committed "misconduct" . . . .
For a detailed discussion on "undue risk of injury or illness, see VQ 235.
Has a reasonable and good faith doubt of the authority of the individual issuing the order.
Example - Reasonable Doubt of Authority:
In P-B-219, the claimant was employed as a practical nurse in a sanitarium. She was assigned to the laundry, and while she was performing her duties there, another practical nurse approached the claimant and asked her to help feed patients. The claimant refused because she had been instructed by the superintendent to work in the laundry and she did not believe the practical nurse who approached her had any authority to countermand the superintendent's orders.
The claimant did not contact the superintendent to determine if she was aware of the order or had originated it. The employer testified at the hearing that the employee who approached the claimant was an assistant to the superintendent, carrying out the superintendent's orders. The claimant testified that she was not aware that the other practical nurse had any authority, and thought that the other employee was at the same level as she was. The Board said:
The claimant did not know nor were the facts adduced to charge her with knowledge that the employee who issued certain instructions to her to leave one work assignment and perform another, had such authority. There had been no clear delineation of authority by the employer. Her refusal to follow such instructions without checking as to their source because she had been assigned certain other work to do by the superintendent, while perhaps an exercise of poor judgment, was not shown to be an intentional or wilful action on the part of the claimant amounting to insubordination.
Note that the claimant's doubts must be of a reasonable or good-faith nature. If the claimant in this case knew that the other practical nurse was representing the employer, she would have been held subject to disqualification for a discharge for misconduct.
- Reasonably and in good faith believes compliance would result in a violation of the law.
2. Refusal to Transfer, Work a Different Shift or Overtime
- Refusal to Transfer
When an employee refuses to transfer (whether in plant or to another location), he or she is withholding services from the employer. If the employment relationship is terminated as a result, the employee is considered the moving party. Hence the separation is a voluntary quit, even though the employer may have terminated the claimant for such refusal. This is the decision in P-B-225, in which the claimant was allowed to resign rather than be terminated for refusing to return to other work at the end of a bona fide leave of absence. Consult the section of the VQ BDG which deals with the claimant's reason for refusing the transfer.
- Refusal to Work a Different Shift
As in the case of refusal to transfer to another location or other work, a termination resulting from a refusal to work a different shift is considered a voluntary quit, rather than a discharge. This is the decision in P-B-209. In that decision, the claimant was a baker's helper. The employer, following negotiations with the bakery worker's union, altered his shift and required him to work on Sunday. The claimant refused for personal reasons and was discharged. The Board said:
[A]lthough as a matter of form the employer discharged this claimant, the claimant herein as a actual fact voluntarily left his work when he refused to work on Sundays in accordance with the instructions of his employer.
- Refusal to Work Overtime
An employee may be discharged for refusing to work overtime. According to the general principles discussed above, if the request is reasonable and lawful, and the employee refuses to comply without justification, then the resulting discharge will be for misconduct. If the request is unreasonable or there is justification, there will be no misconduct.
For example, a mother with no child care for her minor children after 5 p.m. would have justification for refusal to comply with an employer's request, without prior notice, to work overtime until 6 p.m. In this case the employer's request is unreasonable as it would impose a new and unreasonable burden on the claimant. On the other hand, if the claimant's reason for refusing was simply a desire to get home so she could prepare dinner on time, she would not be justified in her refusal. The employer’s request would not impose a new and unreasonable burden on her.
- The employer's order was reasonable and lawful.
- Disputing, Ridiculing Authority
According to Title 22, Section 1256-36(b)(3), an employee is insubordinate if he or she "makes a statement or remark, which is not the result of an error in judgment, under the circumstances which damage or tend to damage the employer's interest." An employee may make these statements or remarks to dispute or ridicule the authority of his or her superiors.
1. Disputing Authority
Title 22, Section 1256-36, COMMENTS after EXAMPLE 7, states:
Not all disputes between an employer and an employee result in discharge of the employee for misconduct. In the normal working situation there is a degree of "give and take" between the employer and the employee . . . Differences of opinion, disagreements, and misunderstandings arise, and participation in such discussions is not misconduct. The circumstances under which the argument or remarks were made are taken into consideration. An isolated instance of an error in judgment is not misconduct.
Example - Disagreements Not Constituting Misconduct:
The claimant, a clerical worker, had been assigned to work which was subsequently taken over by a unit supervisor. The claimant considered the new work unsatisfactory and detrimental to her health. She and the new unit supervisor had minor disagreements on several occasions concerning general policies of the unit and the new duties assigned to the claimant.
The claimant requested a transfer to another department with no results. On her last day of work she was asked to perform certain duties which required bending and stooping; she ignored the supervisor's instructions, feeling that the job would be detrimental to her health. Later that day, when asked by the supervisor if she had carried out the assignment, she said she had not because her back was bothering her. She was discharged.
The reasons advanced by the employer for discharging the claimant, i.e., the bickering between the claimant and her immediate supervisor about the claimant’s work and her failure to perform specific duties assigned to her by her supervisor because she considered such work detrimental to her health, could not be considered a substantial breach of the claimant's duty to the employer with wilful and intentional disregard for the employer's interests. The claimant’s course of conduct which resulted in her discharge was not so unreasonable as to be considered misconduct.
Contrast the above case with the following, in which the dispute with the supervisor evinces a wilful and intentional disregard for the employer’s interests.
Example - Dispute Evinces Wilful Disregard for Employer Interests:
The claimant did cosmetology work. During the last month of her employment, the employer appointed a new manager out of the ranks of the coworkers. After that the claimant began to act in an uncooperative manner. She accused the new manager of taking her tips. The new manager denied it and the claimant did not have facts to back up her accusation. She called the new manager a liar although she had no proof that the new manager did tell lies. She also disputed the new manager's authority in scheduling. She continued to cause difficulties even after she had been spoken to at a meeting. Her uncooperative behavior caused a morale problem. She was then discharged.
The discharge would be for misconduct as the claimant's behavior amounted to a wilful disregard of the employer's interests. Even though the claimant might have disagreed with the new manager on various points, she was obligated to act courteously and cooperatively.
An employee may disagree with the supervisor's estimate of the number of days it would take to complete a job, or with the employer's way of doing the job. As long as the employee merely expresses an opinion and does not disobey a reasonable order, the discharge would not be for misconduct.
However, if the claimant engages in a heated argument with the employer or the employer's representative in the presence of the general public, customers, or other employees, the discharge would be for misconduct. Such a heated argument, especially if there have been prior reprimands or warnings, is considered misconduct as it undermines the employer's control over workers, has a negative effect on employee morale, and affects the public or customers.
Example - Heated Argument in the Presence of Customers:
The claimant worked in a grocery store as a stock clerk and bagger. The store manager testified that the claimant engaged in arguments with supervisors and customers, for which the claimant had been warned. The claimant admitted that on some occasions he engaged in arguments with other employees in the presence of customers.
The claimant had expressed an unwillingness to work overtime on numerous occasions. On the day in question, the supervisor again asked the claimant to work a few minutes overtime, and a heated argument developed concerning the overtime work within the hearing of customers. The claimant was discharged for this incident.
The claimant contended that whatever arguments he engaged in stemmed from his supervisor's unjustified requests that he work overtime. The supervisor's requests that he work a few minutes overtime did not warrant the claimant’s engaging in heated arguments with his supervisor in the presence of customers. If the claimant felt aggrieved by his supervisor's demands he should have complained to the manager of the store or sought redress with his union. This he failed to do.
When the dispute escalates into threats of violence, or insults to the employer or the employer's representative, the resulting discharge would be for misconduct.
Example - Threats to Supervisor:
The claimant was an auto mechanic. On the last day of work, he got into an argument with his supervisor over the handling of a repair of a vehicle. Following this argument the claimant was brought into the office for counseling. At the office he was told he would be suspended for three days. At that point the claimant became upset. He put his hat and badge down very hard on the supervisor's desk when asked to do so, and stormed out of the office after muttering some strong words. He was then taken by another supervisor to the front gate of the plant. On the way, he again made comments to the supervisor who was escorting him and said he would either settle the matter right there or go find the supervisor with whom he had the first argument and settle the matter personally with him.
The supervisor involved felt threatened and felt that the claimant was also threatening the other supervisor. As a result, the claimant was discharged.
The discharge was for misconduct. The claimant made threats to a supervisor. His actions and comments show a wilful and intentional attempt to cause problems for the employer.
Closely related to disputing authority is the claimant's bypassing his or her immediate supervisor. An individual has an inherent right to appeal to a higher authority when he or she is unable to secure a satisfactory adjustment from the immediate supervisor. But when an employee ignores, or refuses to discuss a situation with his or her immediate supervisor, a resulting discharge may be for misconduct if there have been prior warnings and or reprimands. The bypassing of the immediate supervisor may be intended to ridicule, express contempt for, or undermine the supervisor's authority.
If the immediate supervisor is the problem which the worker needs assistance with, however, it is reasonable for the worker to bypass the immediate supervisor. This is especially true in a case involving sexual harassment. It would then be reasonable for the worker to appeal to a higher level of supervision.
2. Ridiculing Authority
Ridiculing authority is misconduct if it does not result from an error of judgment and if it damages or tends to damage the employer's interest.
Example - Ridiculing Authority:
The claimant, a twenty-year veteran assembler, had been warned about his open contempt of, and a general unhelpfulness toward, a young efficiency expert brought in by the company to streamline production and increase profits for the company. On the claimant's last day of work, he was overheard to say to several less senior members of his assembly team, "If I were you I'd not pay any attention to that young kid. They're all alike - making robots of us. All they want to do is to automate us out. That kid's still wet behind the ears, and should do some real work around here." The employer discharged him.
Since the claimant's statement was designed to arouse discontent and foster resentment toward the employer, his discharge was for misconduct in connection with the work.
What if the claimant contends that he or she did it as a joke? Title 22, Section 1256-36 (COMMENTS after EXAMPLE 7) provides in part:
Ridicule, if used in the joking, kidding sense, is not misconduct unless such actions are repeated after warnings or reprimands.
Example - Ridiculing Authority as a Joke:
The claimant, a hostess in a smorgasbord, was overheard by customers laughing and joking with a waitress concerning the possibility of contracting ptomaine from what they classified as one particularly unappetizing-appearing dish. She was counseled, and advised that any further statements criticizing the food or the cooks would not be tolerated. On her last day of work, she and a waitress were again bantering back and forth, and the claimant made the remark, "Gosh, anybody eating this dish had better have a stomach pump handy! This is the fifteenth time this week this same salad's appeared!" Overheard by the assistant manager and a number of customers, she was called into the office and discharged.
Her ridicule of the food, and analysis of what she saw as the probable result of eating it, caused her employer to suffer. She had been warned that her criticisms would not be tolerated. The discharge was for misconduct.
- Exceeding Authority
When a claimant was discharged for allegedly exceeding authority, the following factors need to be considered.
1. The Job's Inherent Authority
Every job carries certain authority, which is created by the agreement of hire, whether oral or written, between the employee and the employer. The agreement will outline the parameters of the employee's authority and provide for any necessary emergency or contingency lines of authority. If the claimant must hold a license or certificate to work, such as a registered nurse or real estate salesperson, certain fundamental limits are already established concerning the amount of authority that the employee may take upon himself or herself in the absence of supervision. If the parameters of authority are outlined clearly and are violated knowingly by the claimant, the discharge would be for misconduct.
Example - Exceeding Authority Wilfully:
The claimant, an outside salesman, was aware that he could not authorize any deviations on a sales contract without express approval from the employer. Convinced that the employer would make a particular deviation which the buyer had requested, he authorized the deviation in writing to the buyer. When the employer learned about his activity, the claimant was discharged for authorizing a deviation without prior approval. The discharge was for misconduct. The claimant wilfully exceeded his authority in direct conflict with his employer’s instructions.
2. Employer’s Failure to Limit Authority
Authority to take action may also be created by failure of the employer to limit or to object to unauthorized or undesirable conduct.
Example - Employer's Failure to Limit Undesirable Conduct:
The claimant, an office manager in a small business, was given authority to purchase stationery, stamps, and other office supplies, as the need arose, from the office petty cash reserve. On numerous occasions he was also permitted to purchase items exceeding the amount in the petty cash fund, simply by advising the employer of what he had done "after the fact." The employer had never refused his requests for equipment or material, or failed to approve a purchase.
Two weeks before his discharge, he was contacted by a manufacturer’s representative, who convinced him that he needed some additional software for use by the company accountant. The employer was out of town, and the claimant was unable to put the salesman's proposition to the employer; knowing that the employer was interested in updating the office capabilities, he ordered the software. The employer discharged him for exceeding his authority and encumbering the employer for an amount in excess of the petty cash fund.
The discharge was not for misconduct. The claimant's actions were an isolated error in judgment in failing to secure the employer's approval prior to the purchase. He had no reason to believe that the employer would not have approved the purchase, as he had done so regularly in the past. The claimant had had no warnings or other indication that the employer disapproved of his taking independent action in the employer's absence.
3. Emergency Situations
Emergency situations may arise which require the employee to take immediate action for the employer's protection or best interests. In the absence of any instructions to the contrary (who is "next in command" in the employer's absence, what plumber or electrician to call, and so forth), an employee who takes emergency action to protect the employer's interests will not have been discharged for misconduct.
Example - Emergency Situation:
The claimant, a bartender, was left in charge of the business at the start of the shift and until the owner was to come in some hours later. One of the cocktail waitresses became incensed at a customer and struck the customer, causing substantial damage to his bridgework and involving retribution from the customer's friends. The bartender promptly discharged the claimant, who left; administered aid to the customer, and "settled down" the rest of the customers.
The employer felt that the bartender exceeded his authority in firing the waitress. He felt the bartender could have isolated the waitress in the kitchen until he arrived to determine what had actually happened. He therefore discharged the bartender for overstepping his authority.
The discharge was not for misconduct. The bartender took what he reasonably believed were the proper steps under the circumstances to protect the employer's interests.
- Vulgar or Profane Language to Supervisor
According to Title 22, Section 1256-36(b), a claimant is insubordinate and the resultant discharge for misconduct if he or she
(4) Addresses vulgar, profane, insulting, obscene, derogatory, or offensive language of a vile nature toward the employer or the employer's representative when such remarks are unjustified under the circumstances, and not within the normal exchange and customary good-natured banter between the employer or the employer's representative and the employee.
Under "COMMENTS," the same section continues:
In determining if vulgar or profane language constitutes misconduct, one must examine the normal practices in the establishment where the employee is employed and the circumstances under which the remarks were made. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store, or government office. The normal exchange among workers differs according to the occupation. Vulgar language is also used among employees as a friendly banter. However, the common and friendly banter of vulgar language between coworkers constitutes insubordination if directed to a supervisor, unless there was a prior relationship between the supervisor and the employee which allowed such friendly banter.
Generally, a single remark or outburst uttered in a situation of stress or provocation does not constitute misconduct.
Example - Vulgar Language, Isolated Instance:
In Silva v. Nelson (First Appellate Court, 1973), the claimant was being trained for new and unfamiliar work by his employer. He became nervous and frustrated, and either "blew up" or felt he was "going to blow up." He left work in midafternoon, before the end of his shift, without permission. He had been under a psychologist's care for emotional problems, and his shop manager was aware of this. The next morning, the shop manager asked him about his unauthorized departure, and the claimant became defensive; his shop manager told him if he left again without authorization, he "might as well not return." The claimant responded that he didn't "give a shit" (testimony was unclear whether the statement was amplified with, "about you or the job"); the shop manager responded that if that was the way the claimant felt, he could leave right then. He felt the claimant had quit, but would have fired the claimant anyway for his language and attitude during the exchange noted above.
The claimant explained that his outburst resulted from aggravation, embarrassment, and humiliation that two of his fellow employees had been witnesses to the confrontation. He considered he had been fired
The Court said:
We need not decide whether appellant's unauthorized departure under the circumstances of record . . . might have met the volitional, deliberate or wanton disregard of duty tests . . . for the reason that the evidence does not support a finding or conclusion that appellant was discharged for that departure . . . . Appellant's language at the confrontation was the sole cause of his discharge. That the departure brought about the confrontation does not make it the cause of discharge . . . .
Given the tests of fault and willful or wanton behavior as essential elements of 'misconduct,' the single instance of an offensive remark uttered in the circumstances disclosed in the instant record falls within the category of a mere mistake or error in judgment - a 'minor peccadillo' - and is not misconduct disqualifying appellant from unemployment insurance benefits.
If the claimant had been warned in the past that such language was unacceptable to the employer, and had still continued to express himself or herself by means of it, and was discharged, the discharge would be for misconduct.
If the case of the confrontation between Silva and his shop foreman, there was conflicting evidence as to exactly what was said. Witnesses can sometimes shed light upon not only what was said, but how it was said; an attitude conveyed in the how of what was said can indicate the difference between "friendly banter" and "vulgar or profane language," particularly in an emotionally-charged situation that may be imperfectly recalled as to exact language after the passage of time.