Misconduct MC 15
This section discusses principles to be applied when the claimant was discharged because of attendance problems, which include absence from work, being late for work and failure to notify the employer of the absence or tardiness. For a discharge due to leaving work early, see MC 310, Neglect of Duty, under Temporary Cessation of Work. Although "Absence," "Tardiness," and "Notice" are separately discussed in this section, it should be noted that an employee may be discharged for being absent or late for work, as well as for failure to notify the employer of the absence or tardiness.
One of the most important obligations which an employee owes an employer is to be at the place of work at the times scheduled by the employer. When an employee is absent from work, the employer's interests would be injured because the employee's work remains undone or some other employees have to do the work for him or her. When an employee is discharged for absence, the discharge could be for misconduct if it is determined that the claimant's actions evince a wilful or wanton disregard of the employer's interests.
If the claimant's actions show that he or she had no intention of returning to work, or if this is the only interpretation which reasonably can be deducted from the claimant's action, the resulting separation will be considered a voluntary leaving, even though the employer's record shows that the claimant was discharged. To resolve the issue, refer to the appropriate section of the VQ BDG according to the claimant's reasons for not returning to work.
It is also necessary to determine whether the claimant was discharged for the absence or for failure to inform the employer of the intended absence. If the claimant was discharged for both being absent from work and failure to notify the employer, resolve the issue according to the principles provided for both reasons.
- General Considerations
To determine whether the claimant's absence evinces a willful disregard of the employer's interests, the following questions need to be answered:
- Did the claimant have permission to be absent? If not,
- Was there a compelling reason for the absence?
- Was the absence an isolated instance?
- Were there prior warnings or reprimands for unexcused absences or other infractions?
Usual employment practices require that an employee gain permission from the employer before he or she is absent from work. This would apply under normal circumstances. If prior approval is granted for the absence, and the claimant is discharged for the absence, he or she is generally not subject to disqualification. Title 22, Section 1256-31(b), provides in part:
If an employer has given an employee prior approval for an absence from work, or grants approval when notified by the employee of an absence, a discharge of that employee for that absence from work is not for misconduct unless unusual circumstances are presented.
What if permission is requested, but the employer refuses to grant the permission? If this is the case, the employee who takes leave anyhow and is discharged will be held to have been discharged for misconduct unless the employee has a compelling reason for the absence
Example - Permission Not Granted, No Compelling Reason:
The claimant was a service station attendant and asked for a Saturday off to attend a baseball game. The employer denied permission because Saturday was its busiest day. The claimant took the day off anyway and was discharged. The claimant's absence without permission was deliberate disobedience to the employer's instructions and on the busiest day of the week combined to constitute a serious breach of the duty owed by the claimant to the employer. Because the claimant did not have a compelling reason for taking the day off, the discharge was for misconduct.
Contrast the above case with the following:
Example - Permission Not Granted, Compelling Reason for Absence:
The claimant had been granted a one-week leave of absence. Due to flood conditions which resulted in increased plane travel, she was unable to get a return reservation. She wired her employer that she would have to return by automobile. Because of prior incidences of absence and tardiness followed by reprimands, the employer would not grant permission for the extra time involved, and sent the claimant a letter of discharge. The claimant was not intentionally disregarding her employer’s interests. To the contrary, she was doing everything within her power to return to work. The discharge would not be for misconduct.
What if an employee deliberately gives false reasons to obtain permission to be absent? If this is the case, and the employee knew or should have known that the employer would not have granted the permission had the true reasons for the absence been known, the discharge would be for misconduct.
Example - False Reason for Absence:
The claimant worked full-time as a parts driver. After working three months on the job, he wanted to find a better paying job. On Monday, April 16, he called and informed the employer that he had dental appointments and would not be in on Monday and Tuesday, but would return on Wednesday. In fact, on Monday, he went to a potential employer, took a long test and had an interview with the employer. On the following day he looked for other work and had another interview. He did not want to tell the employer the real reason because he knew the employer would not allow him time off to look for another job. When the employer learned about the truth a few days later, the employer discharged the claimant.
The discharge was for misconduct. The claimant withheld the real reason for his absences on those two days because he believed he would not have been granted time off to look for other work. The absences were not for compelling reasons and the claimant breached his duty of honesty to the employer.
When the claimant is discharged for an unexcused absence, i.e., without the employer's prior permission, the determination of eligibility will depend on the reason for the absence, whether it is an isolated instance and whether there are prior warnings or reprimands for unexcused absences or other infractions.
- Compelling Reason
If the absence is unexcused and the reason for the absence is noncompelling, the discharge would be for misconduct.
On the other hand, if there is a compelling reason for the absence, there is no willful disregard of the employer's interests. It is understandable that an employer would want to have more dependable employees; however, if the absence is due to a compelling reason, the absence cannot constitute misconduct, provided that the employee properly notifies the employer of the intended absence, or has a compelling reason for failure to notify the employer.
"Compelling reasons" as used here means substantially the same as good cause in a voluntary leaving context, i.e., did the claimant have a real, substantial and compelling reason of such nature that a reasonably prudent person, genuinely desirous of retaining employment would have acted in a like manner? Common examples of compelling reasons for absences are:
- Injury or Illness.
- Taking care of family members who are sick.
- Loss of private transportation and there are no reasonable alternatives.
- Being subpoenaed to court.
Example - Absence, Son was Sick:
In P-B-213, the claimant last worked on April 11. She did not report for work on April 12 and 13 because her three-year old son was, at that time, confined to a hospital with a fatal disease.
The claimant did not communicate with her employer during her absence because she was during this period constantly at her child's bedside and her thoughts were completely preoccupied with her child. She was terminated for the absence. In finding the claimant eligible, the Board stated:
. . . In the instant case the claimant had a satisfactory record of performance until the occasion in question. She had never previously been warned or reprimanded for any dereliction of duty. Furthermore, considering the circumstances which gave rise to her absence it cannot be said that her conduct evinced a wilful or wanton disregard of her employer's interests.
The Board mentioned three reasons for its decision, namely, satisfactory record of performance, never been warned or reprimanded and the compelling reason for the absence. Even if the claimant did not have a satisfactory record, or had been warned before about unexcused absence, the discharge would not be for misconduct because the claimant's absence was due to a compelling reason.
Example - Absence Due to Illness:
In P-B-216, the claimant was a guard working at the establishment of the employer's clients. On the last day of work, he became ill while at work and called the employer's office for a relief guard. The employer sent a guard to relieve the claimant. The claimant went to see a doctor the following day. He was then hospitalized for tests and was determined to have suffered a heart attack. He filed a claim for disability benefits. When he was able to work, he reported to the employer but was told that he had been replaced. The employer contended that the claimant had not called in after the last day of work to report his continued illness. The claimant testified that his supervisor had visited him and that he informed the supervisor that he had a heart attack; and that he could not estimate when he would be able to return to work. He also testified that he had called the employer's office one week after the last day of work. The Board found the claimant eligible, stating: ". . .We therefore conclude that the claimant was absent from his work because of illness; that he properly notified the employer of his absence. . . ."
What if the unexcused absence did not result from a real, substantial, and compelling reason, but from an error of judgment? If this is the case and the absence is an isolated instance, the resultant discharge is not for misconduct.
Example - Absence Due to Error of Judgment:
The claimant, a painter, was absent because he thought the weather conditions were too bad to permit working. The claimant had reported to his employer in the morning and was told that the wind was too strong to paint but that they might be able to work that afternoon. The claimant, after noon, concluded that the wind was still too strong to paint so he did not report back to his employer. The employer, however, found that the wind would permit painting and he and three of the seven crew members painted that afternoon. The claimant and three other crew members who did not report for work were discharged.
The claimant’s only reason for not reporting at noon was that, in his opinion from an observation of the weather conditions, it would not be possible to work. That this opinion was not wholly unreasonable is supported by the fact that only three of the seven employees on the project reported for work in the afternoon. The claimant in this case would be guilty of an error in judgment, but not of misconduct.
- Single/Isolated Instance
If the absence which occasioned the discharge was the claimant's first unexcused absence, usually there would be other reasons for the discharge. For example, an employer's known rule might provide for discharge after an unexcused absence of three days. If, in such a case, a claimant absents himself or herself with no compelling reason for three or more days, even though the first instance, and fails without good cause to notify the employer, he or she would be evincing a willful disregard of the employer's interests and the discharge would be for misconduct.
Or, the claimant may have had no prior occasions of unexcused absence but his or her prior record might be replete with other violations of standard behavior for which he or she had been warned or reprimanded, such as ridiculing the supervisor, harassing fellow workers, deliberate "stalling" on the job and tardiness. In such a case, his or her first unexcused absence could constitute misconduct.
Example - First Instance of Unexcused Absence, Poor Work Record:
The claimant, over a considerable period of time, tampered with his employer's equipment and engaged in horseplay dangerous to himself and fellow employees. He persisted in this course of conduct despite repeated warnings. The last warning was that his work had slipped, he was not doing the share of his work and fellow workers did not care to work with him. Three days after the final warning, he did not report for work and did not call in. Although this was his first unexcused absence, he was discharged because of his poor work record.
The discharge was for misconduct. Even though the immediate cause of the claimant's discharge was his first unexcused absence, he had been warned before for other incidents. The claimant's actions evinced a deliberate disregard of the standards of behavior which the employer has the right to expect of his employee.
- Prior Warnings or Reprimands
When an employee was discharged for an unexcused absence without a compelling reason, it is also necessary to find out if he or she had received prior warnings or reprimands for absences. Title 22, Section 1256-31, Comments, provides in part:
. . . If compelling reasons for an employee's absence from work exist, . . . prior warnings or reprimands by the employer do not negate the compelling reasons. Prior warnings or reprimands are pertinent, however, if the employee does not have compelling reasons. In that case, since the lack of prior warnings or reprimands by the employer condones a pattern of unexcused absences, the employee's lack of willfulness in violating any duty to the employer is apparent; there is no misconduct. On the other hand, an employer's prior warnings or reprimands for unexcused absences due to noncompelling reasons followed by a repeated similar absence justifies a discharge for misconduct . . .
Based on the above regulation, if there were prior warnings or reprimands and the claimant was discharged for an unexcused absence without a compelling reason, the discharge is for misconduct.
Example - Unexcused Absence, No Compelling Reason, Prior Warnings or Reprimands:
For almost four years the claimant worked as a parts blower. During his last six months of work he was absent twenty four times. He was given written warnings three times during that period of time. A week before the last day of work, he was placed on probation for three months. He was told that he would be discharged if he was not present at the starting time during the entire probationary period.
The claimant did not show up for work on April 26. He left a message on the answering machine at 12:43 a.m., even though he was due in at 12 midnight. His message was that he would not be in for personal reasons. When interviewed by the Department interviewer, the claimant said he did not report for work on April 26 because of a stomach ache and dizziness. However, when he initially applied for benefits, he indicated that the reason for his discharge was that he worked graveyard and had trouble getting used to working nights. He also said it was especially difficult to get to work because he was attending school.
The discharge was for misconduct. He had been warned before about absence from work. His statement that his final absence was due to illness is not credible. When he initially applied for benefits, he did not mention this as the reason for his absence. He also could have told his employer that he could not report for work because of illness.
When considering prior warnings or reprimands for absences, it is necessary to consider if the absences for which the claimant was warned or reprimanded were due to compelling reasons. An employer might give warnings for absences even though the employee had a compelling reason for being absent. Such warnings and or reprimands would not support a conclusion that the claimant's actions evince a willful or wanton disregard of he employer's interests.
On the other hand, if the claimant had prior absences and the employer had failed to give him warnings or reprimands, then the discharge for the unexcused absence would not be for misconduct. The employer's failure to give warnings or reprimands would have condoned the absences.
Example - Unexcused Absence, No Prior Warnings or Reprimands:
The claimant failed to report to work because he left for Fresno to visit a friend. He called to notify the employer of his intended absence. However, the employer records do not show that such a call was received. The claimant was discharged for the absence. The employer records also show that prior to the discharge, the claimant had been absent for one day on 70 occasions, most of which were unexcused. The evidence does not indicate that on any of these occasions the claimant was reprimanded or informed that continued absences would subject him to discharge.
The discharge was not for misconduct. The claimant's many previous unexcused absences had gone unnoticed and without reprimands by the employer. In the absence of warnings or reprimands, the claimant's actions are not considered a willful disregard of the employer's interests.
- General Considerations
- Absence Due to Incarceration
A claimant could be discharged because of absence due to incarceration. In such a case, the first consideration is whether the separation is a discharge or voluntary quit. There are two factors to be considered. They are:
- Was the claimant absent from work for more than 24 hours due to incarceration?
- Was the claimant convicted of the offense or any lesser offense for which he or she was incarcerated, or did the claimant plead guilty or nolo contendere?
If the answer to both questions is affirmative, the separation is considered a voluntary quit even though the claimant was actually discharged for absence from work. This is according to Title 22, Section 1256-31(d)(1), which provides in part:
. . . A voluntary leaving without good cause exists, and not a discharge, where an individual's employment is terminated due to his or her absence from work for a period in excess of 24 hours because of incarceration and the individual is convicted of the offense or any lesser offense or pleads guilty or nolo contendere.
"24 hours" as used here means 24 clock or consecutive hours rather than 24 working hours. This is the decision in P-B-443. See VQ 360 for a detailed discussion on this P-B. Also see VQ 360 if the separation is considered a voluntary quit.
What if the disposition of the case is still pending? If the absence is in excess of 24 hours and there has been no conviction or the claimant has not entered a plea of guilty or nolo contendere, the issue is a discharge, and not a voluntary quit.
If the claimant was absent 24 hours or less, including such incarceration where an individual in a narcotics or drug abuse case is diverted to a program of education, treatment or rehabilitation, the separation is considered a discharge.
If the claimant was not guilty of the offense or any lesser offense for which the claimant was incarcerated, the separation is also considered a discharge.
When a claimant is terminated for absence due to incarceration, and the separation is considered a discharge, whether the discharge is for misconduct depends on the claimant's efforts to notify the employer of absences. See C. Notice below for a discussion on the claimant's obligation to notify the employer when he or she is incarcerated.
Example - Claimant Not Guilty of Offense:
The claimant was arrested on an outstanding warrant and charged with driving under the influence of alcohol. He protested the warrant but was nevertheless incarcerated and arraigned. Two days after his arrest, he or his brother contacted the employer to advise the employer of his being held in jail. He was sentenced to serve a year in the county jail but was released at the end of six months when it was found that the warrant under which he had been arrested did not apply to him. The claimant was represented by a public defender but was unable to convince the authorities that he was not the person named in the warrant. When the discrepancy was finally corrected by judicial clearance the claimant was released. The employer terminated the claimant after learning that he had been sentenced to serve time.
The claimant was found eligible. He was eventually found innocent of the charges for which he had been incarcerated. He notified the employer of the reason for his absence shortly after the arrest.
Regardless of the length of the absence, if the incarceration is but a substitute for a fine which could not be paid due to the claimant's indigence, the separation is a discharge. Title 22, Section 1256-31, Comments, states in part:
. . . An individual who voluntarily commits and is convicted of a crime for which a fine is imposed but who is indigent and unable to pay the fine and is thereupon incarcerated in essence loses his or her job when discharged for absence due to incarceration because of indigence and not due to the voluntary criminal act. The act is voluntary, but the failure to pay is involuntary. But for the individual's involuntary indigence, there would have been no incarceration and no absence from work despite the commission of a crime.
Example - Unable to Pay Fine:
In Kaylor v. Calif. Dept. of Human Resources (1973), the claimant was sentenced to pay a fine of $120 or spend seven days in jail. After trying unsuccessfully to obtain an advance on wages he had earned, the claimant notified his employer that he must spend seven days in jail. He was terminated during his absence. The court held that compelling an indigent person to serve a sentence in lieu of fine was in violation of the equal protection clause of the Fourteenth Amendment. The court further held that denial of UI benefits under these circumstances is contrary to the policy expressed in Section 100 of the UI code and said:
. . . a severe construction of Section 1256.1 would present the ludicrous proposition that a rich man could retain his job or his eligibility for unemployment compensation, whereas the poor man not only loses his job, but he is denied unemployment benefits.
What if the incarceration in lieu of the fine is not because of the claimant's indigence but simply a matter of his or her election? In this case, the claimant cannot escape disqualification under the Kaylor rationale. So long as he or she has resources such as a bank account, home, car, etc., which can be used directly or as collateral to raise funds to pay the fine, he or she is not indigent. It should also be noted that this exception applies only to a fine in lieu of incarceration. It is not applicable where the claimant cannot raise funds to permit a release on bail.
- Leave of Absence
If the claimant is discharged because he or she overstays a leave of absence, resolve the issue as if the claimant is absent from work.
What if the claimant is discharged for failure to return to work prior to the end of a fixed leave when he or she accomplishes the purposes for which the leave is requested? Will such a discharge be for misconduct? In such a case, the discharge is not for misconduct. The employee only has a moral obligation to return to work after he or she has taken care of the business for which the leave is granted.
Example - Failure to Return Prior to End of Fixed Leave:
In P-B-189, the claimant had requested and obtained a leave of absence for one week in order to take care of certain domestic and personal responsibilities. He devoted a portion of that leave to the purposes for which it was granted. Having finished his personal business, he engaged in gambling activities for the balance of the leave. The employer learned of his gambling activities and discharged him. In finding the claimant eligible, the Board stated:
. . . It is undisputed that the claimant had requested and obtained a definite leave of absence of one week's duration and that he devoted a portion of the leave to the purposes for which it was granted. We cannot find . . . that there was anything but a moral obligation on the claimant to return to work when he had taken care of his domestic responsibilities.
Note that in this case there was no finding that the claimant obtained the leave under false pretenses. Had he actually advanced a false reason for requesting the leave, the Board unquestionably would have found misconduct.
- Verification of Absences
An employer may request or have a rule requiring an employee to provide verification to support his or her absences. If the request or rule is reasonable, and an employee is discharged for providing the employer with false documentation to support his or her absences, the discharge would be for misconduct. In effect, the claimant is discharged for giving false reasons to obtain permission for being absent.
Example - False Documentation for Absences:
The claimant had worked for the employer for four years as a sheet-metal worker. The employer had various difficulties with the claimant's attendance. The employer and the claimant then entered into an agreement by which the claimant would be required to provide verification of his subsequent absences. The claimant was absent on February 5 and February 10. He brought in a note which was allegedly from his doctor but it was completed on an invoice. The note had some spelling and grammatical errors. Because of these errors, the employer was concerned that the note might not actually have come from the doctor.
The employer checked with the doctor and discovered that the doctor had neither completed nor authorized the note. The claimant was then discharged.
The discharge was for misconduct. The claimant provided falsified documentation for his absences. He had a duty to provide the documentation required by the employer to support his absences.
What if the employer is dissatisfied with the documentation presented and discharges the claimant?
Example - Employer Dissatisfied With Employee's Physician's Medical Reports:
In P-B-244, the claimant lived in Van Nuys and traveled a distance of 27 miles to work. She became disabled on May 27 and was placed on leave of absence. On August 28, the employer terminated her while she was on the leave of absence. The employer took the action because its medical department was displeased with the reports submitted by the claimant's physician. This physician had advised the claimant that traveling to work both from Van Nuys and Compton was detrimental to her health. Later, the employer decided that the claimant had been improperly terminated and the claimant was restored to her leave of absence. However, the employer never notified the claimant of this action. Eventually the claimant was terminated because of her failure to return to work at the conclusion of a trade dispute. The Board found the claimant eligible, and stated:
. . . The preponderance of the evidence indicates that the claimant was discharged by the employer on August 28 . . . , irrespective of the fact the employer subsequently determined, without notifying the claimant, that this action was in error and the claimant was again unilaterally placed on a leave of absence. Under these circumstances, which indicate that the claimant was dismissed for reasons which do not constitute misconduct, she is not subject to the ineligibility provisions.
What if the claimant has asked his or her physician to submit a medical verification report directly to the employer to support her absence, and the physician fails to submit it?
Example - Physician Failed to Submit Verifying Documentation:
In P-B-181, the claimant obtained medical verification for six consecutive extensions of her sick leave. Before the expiration of the final sick leave the claimant called the employer and asked for forms to extend her sick leave for the seventh time. Upon receiving the forms, the claimant forwarded them to her physician. Six days later, the employer, not having received substantiating documentation from the claimant or her doctor, notified the claimant that she was in violation of the employer rule relating to absences from work, and that further disregard of the rule would result in discharge. Immediately, the claimant contacted her doctor's office to ascertain why the medical verification for the extension of her leave had not been forwarded to the employer. She was advised that the doctor's office was overburdened with requests of similar type and that her matter would be taken care of soon as possible.
When the employer did not receive the medical substantiation a week later, a decision was made to discharge the claimant. In finding the claimant eligible, the Board stated:
. . . the claimant substantially complied with the employer's requirements that she notify the employer of the necessity of extending her leave of absence and that she took those steps reasonably calculated to provide the employer with verifying medical documentation. In fact, the employer admittedly had actual knowledge that the claimant would be unable to return to work at the expiration of her leave and that he was attempting to secure supporting medical evidence. Under these circumstances we cannot find that the claimant wilfully disregarded the employer's interests . . . .
With regard to tardiness, Title 22, Section 1256-40, states:
The employee's obligation to arrive at work on time is an implied obligation which the employer does not have to set forth at the time of hire.
Tardiness breaches the standard of punctual behavior which the employer has the right to expect.
Given this obligation on the part of the employee and the standard of punctual behavior the employer has the right to expect, tardiness is misconduct if, as stated in Title 22, Section 1256-40:
It results in a substantial breach and disregard of the duty owed to the employer and shows a wilful or wanton disregard of and injures or tends to injure the employer's interests, such as any of the following circumstances:
- Repeated inexcusable tardiness to work despite a recent warning that inexcusable tardiness may result in discharge.
- An instance of inexcusable tardiness considered in conjunction with violations of other employer standards and prior reprimands or warnings for those violations.
- A single instance of inexcusable tardiness which causes reasonably foreseeable substantial injury to the employer's interests.
If the discharge is due to tardiness, it is therefore necessary to ask the following questions:
- Did the claimant have a compelling reason for the tardiness? (If there was a compelling reason, the tardiness is excusable.)
- Was the tardiness an isolated instance?
- Would the tardiness only have minor consequences or would the tardiness cause foreseeable substantial injury to the employer's interests?
- Were there prior warnings or reprimands for tardiness or other violations of employer standards?
- Compelling Reason
If the claimant has a compelling reason for being tardy, his or her discharge is not for misconduct, despite prior warnings or reprimands, according to Title 22, Section 1256-40(d)(2), which provides:
If a claimant has a compelling reason for his or her tardiness, his or her discharge cannot be for misconduct, regardless of previous instances of tardiness or prior reprimands and warnings. Substantially compelling reasons outweigh a claimant's obligation to arrive at work on time regardless of the adverse effect on the employer's operations. Less compelling circumstances tend to show disregard of the employer's interests. Mere personal inconvenience, failure to allow ample traveling time to work, oversleeping, or missing the bus are not reasonable excuses for repeated tardiness.
The claimant's reason for being tardy is therefore an important consideration. Generally, if it is beyond the claimant's control, the claimant will have a compelling reason for being tardy. For example, the claimant has to deal with unforeseen urgent child care problems, or the claimant is involved in an accident on the way to work and the claimant is not responsible for the accident. On the other hand, if it is within the claimant's control and he or she fails to exercise reasonable care, he or she will not have excuses for being tardy.
It should be noted, however, that even if the claimant has a compelling reason for being tardy, he or she still has an obligation to notify the employer of his or her tardiness in compliance with the employer's rule. Failure to give notice may subject the claimant to disqualification despite the compelling reason he or she has for being tardy.
- Single/Isolated Instance
Generally, occasional or isolated lapses of tardiness without previous warnings or reprimands would not constitute misconduct. However, even though it is an isolated instance, the discharge would be for misconduct if the tardiness caused substantial injury to the employer's interests and the claimant should have foreseen the substantial loss.
Example - Single Instance, Foreseeable Substantial Loss:
The claimant, one of two chemists in a factory, was responsible for operating controls on machinery which added catalytic agents at predesignated steps in the manufacturing process. The second chemist was on vacation. Although he had never before been tardy to work, the last day of work he showed up two hours late for reasons which were noncompelling. He was discharged. His tardiness resulted in the loss of two hours of production time as the lines could not operate without the addition of the catalyst; additionally, his employer suffered economically in that he had to pay wages to those employees who were forced to stand by while waiting for the claimant to show up.
The discharge was for misconduct, even though the reason for discharge was only a single instance of tardiness not preceded by reprimands or warnings. The claimant was aware that he, alone, had the responsibility for adding the catalysts. His tardiness caused a substantial loss to the employer.
There is another situation in which an isolated instance of tardiness would constitute misconduct. It occurs when there are other violations for which the claimant has been warned or reprimanded.
Example - Single Tardiness and Other Infractions:
The claimant, who normally works 8 a.m. to 5 p.m., requested permission to report to work an hour late. His intent was to go to the Post Office to buy stamps with which to mail his Christmas cards. Reporting two and a half hours later, he advised his employer that he had decided, once at the Post Office, that he would do some additional Christmas shopping "since he was already downtown." His employer discharged him. He had prior warnings for being absent without notifying the employer, taking longer lunch periods than authorized, leaving work early, and failure to follow reasonable employer instructions.
The discharge was for misconduct. The claimant had no compelling reason for overstaying the one hour which he had been allowed. He had been warned about prior violations of the standard of conduct which the employer could reasonably expect.
- Minor Consequence
If the claimant is not substantially late and does not in any way interfere with the employer's operations, the discharge would not be for misconduct.
Example - Minor Consequence:
In P-B-186, the claimant was a janitor employed from 7 a.m. until 3:30 p.m. One of his duties was to burn scrap lumber and sawdust in an incinerator. His hourly pay began at 7 a.m. each day, and his employer expected him to be at his work station at 7 a.m. It was a two- or three-minute walk from the time clock to the incinerator. He had been late reaching his work station on several occasions, and had been warned that future tardiness would lead to discharge.
On his last day of work, the 7 a.m. whistle blew while he was still 10 to 15 yards away from the incinerator; he was discharged for not being at work on time.
The claimant's first duty in the morning was to start the incinerator. It required 20 to 30 minutes to hand load the incinerator, after which it was fired and sawdust then fed into it automatically. There was no evidence that the claimant's actions had in any way interfered with the employer's operations. The Board found the claimant eligible and stated:
. . . Although the claimant in the case now before us did not have any justification for his tardiness, we look beyond the element to determine whether the claimant's entire 'course of conduct which resulted in his discharge was so unreasonable as to be misconduct.
From the evidence before us, we find that, if there was any dereliction of duty on the part of the claimant, it was of such minor consequence that it did not constitute misconduct.
- Repeated Instance of Tardiness
If the claimant is repeatedly late to work and has been warned or reprimanded before, his discharge for being tardy would be for misconduct. In a case like this, the claimant's actions would be considered willful and a substantial disregard of the employer's interests.
Example 1 - Repeated Instance of Tardiness:
In Drysdale v. HRD (First Appellate Court, 1978), the claimant was hired as a legal secretary, regular hours from 8:30 a.m. to 5 p.m. with one hour for lunch. Her employer initially condoned her late reporting as long as she was "in motion" by 9 a.m., but the claimant was habitually late, took lunch hours up to three hours in length, or was absent altogether. She was repeatedly admonished, and then placed on probation. On the last day of employment, she was to have arranged a conference call between Hawaii and Idaho, but was again tardy and did not complete the telephone arrangements, resulting in inconvenience to both callers. As a result, she was discharged. The court held:
. . . This court is not concerned with an isolated instance but with recurring conduct of tardiness after repeated admonitions . . . her conduct was intentional and showed a substantial disregard of her employer's interests.
The claimant was held ineligible. She had prior warnings and had no apparent excusable reason for her tardiness on the last day.
Example 2 - Repeated Instance of Tardiness:
In P-B-143, the claimant was a monthly-salaried storeroom manager for a hotel. One of his duties was to open the storeroom each morning at 7 a.m. so that supplies, needed in various departments of the hotel, could be obtained. During his last year of employment, he customarily reported between 10 and 20 minutes late for work, and on one occasion, one and a half hours late. One month before the discharge, he was warned that if his tardiness continued he would be discharged.
Four days before his discharge, he overslept, requiring someone from the hotel to go to his home to awaken him. That day he reported for work four and a half hours late. On the last day of work he reported for work at about 7:10 a.m. After evaluation of the claimant's record the employer discharged him on that day for repeated tardiness.
The claimant maintained that since he was a monthly-salaried employee, rather than hourly, he had executive status; he did not regard himself as being late on those days that he reported between 7:10 and 7:20 because he had no regular assigned hours. He did concede, however, that he was supposed to be at work "around 7 a.m."
The Board found the claimant ineligible and said:
The claimant . . . has maintained that he had no fixed time for reporting for work. The weight of the evidence is to the contrary. One of his duties was to open the storeroom at 7 a.m. so that supplies could be obtained. When he was warned . . . that his continued tardiness would result in his discharge, he could not have entertained any reasonable doubt that he was expected to be at work at 7 a.m. . . .
The claimant's pattern of reporting for work late without reasonable excuse was a course of conduct in substantial disregard of the employer's interest. His resulting discharge was for misconduct connected with his most recent work.
Note that the claimant contended that since he was not paid by the hour and was not required to punch a time clock, he should not be considered late on those days when he reported for work between 10 and 20 minutes after the hour he was expected to start work. The Board, however, rejected this argument.
One of the most important obligations which an employee owes an employer is to be at the place of work at the times scheduled by the employer. When an employee is unable to report for work, he or she is obligated to notify the employer, according to employer rules.
Title 22, Section 1256-31(c), states:
Except for an isolated instance of a short period of unexcused absence for the first time due to an employee's good faith error in judgment, . . . an employee who is discharged by the employer due to the employee's absence from work without prior approval of the employer is discharged for misconduct if . . .
The employee has not, personally if reasonably possible or by a reliable agent and with reasonable promptness under the circumstance, notified the employer of the employee's absence from work and the reasons for the absence, where notice to the employer is reasonably feasible, and there is no real, substantial, and compelling reason to excuse the failure to give such notice.
- Failure to Notify
According to the above regulation, when a claimant was discharged for failure to notify the employer of an absence, the following questions need to be asked:
- Is there a real, substantial and compelling reason to excuse the failure to give such notice?
- Is notice to the employer reasonably feasible, either by the claimant personally or by a reliable agent?
Unless the unreported absence is an isolated instance of short duration due to the claimant's good faith error in judgment, failure to notify the employer of the absence is misconduct if there is no compelling reason for the failure and if notice is reasonably feasible. This is so even though the claimant might have a compelling reason for the absence.
Example - Failure to Notify, No Compelling Reason:
In P-B-215, the claimant was unable to work on October 8 because she had no one to care for her children. She did not notify her employer that she could not report for work that day. Then the claimant attempted to obtain child care without success. She made no effort to return to work or contact her employer prior to October 12, on which date she was discharged for failure to report for work or give any notification of her absence. The employer has a rule, of which the claimant was aware, that unscheduled absences must be reported "as far ahead of time as possible." The claimant had been reprimanded twice for violations of this rule. In holding the claimant ineligible, the Board stated:
. . . [I]n the present case, the reason for the claimant's absences was such as to make the absences justifiable. However, she was not discharged for the absences, but rather for her failure to notify her employer thereof. Since she was aware of her duty in this respect, but failed, without excuse, to apprise her employer concerning her absence, it is our conclusion that the claimant was discharged for misconduct. . .
Note that in this case, the claimant did not have a compelling reason for failure to notify the employer.
Where there is a compelling reason for failure to notify, the discharge will not be for misconduct.
Example - Failure to Notify, Compelling Reason:
In P-B-213, the claimant failed to report for work on April 12 and April 13 because her three-year-old son was, at that time, confined to a hospital with a fatal disease. The claimant did not communicate with her employer during her absence because she was during this period constantly at her child's bedside and her thoughts were completely preoccupied with her child. She was terminated for the absence and was replaced because it was the employer's policy to terminate the employment of any employee who was absent from work for a period of two or three days without notifying the employer. In finding the claimant eligible, the Board stated: ". . . considering the circumstances which gave rise to her absence, it cannot be said that her conduct evinced a wilful or wanton disregard of her employer's interests."
In this case, the claimant's reasons for failure to notify the employer were substantial and understandable. Undoubtedly all her thoughts and attention were concentrated on her dying son. Any person, no matter how prudent or genuinely desirous of retaining employment, might have forgotten to call his employer under like circumstances.
When a claimant alleges that it was not reasonably feasible for him or her to notify the employer, the claimant's reasons should be care fully considered.
Example - Notice Reasonably Feasible:
The claimant lived alone and did not have a telephone. He testified that it was "difficult or impossible" to use the phone located in the manager's apartment during normal hours when the employer's establishment was open. It was established that the claimant reported to the employer's establishment on one occasion. In addition, the claimant made the necessary trips to the store to provide groceries and left his room for the purpose of taking sun baths.
The evidence indicates that the claimant was physically capable of leaving his room for the purpose of contacting the employer. His failure to communicate with the employer constituted a willful disregard of the employer’s interests and would be a discharge for misconduct.
What if the claimant alleged he or she was sick and could not notify the employer? Illness is generally a compelling reason for absence. However, it is not automatically a compelling reason for failure to notify the employer of the absence, where the facts show that the claimant reasonably could have notified the employer.
What if the claimant alleged he or she was unable to notify due to incarceration? The primary thought of a person arrested and incarcerated is to obtain his or her release. Because of the inherent stress and difficulty of the immediate situation, any thought of notifying the employer of the absence would, at best, be secondary. Also, as a rule, incarcerated individuals are allowed to make only one telephone call. As expected, this call would normally be used to contact an attorney, bail bondsman or relative. Even if the claimant did have sufficient presence of mind to request the one outside contact to notify the employer of his or her absence, he or she would have no control over their acting on his or her request. Consequently, there would be a compelling reason for failure to give notice of absence in such a situation.
On the other hand, failure to give notice when incarcerated would be misconduct should the facts indicate that it was reasonably possible for the claimant to contact the employer, e.g., the claimant was not restricted to just one phone call or subsequent to the initial emotional experience of being incarcerated, he or she had visitors that could have been requested to contact the employer.
- Necessity to Give Continuing Notice
Title 22, Section 1256-31, Comments, provides in part:
. . . The employee's obligation to give notice to the employer of the reasons for an unexcused absence includes the duty to give continuing notice and the probable date of return to work. For example, an ill employee should tell the employer when the employee expects to recover and return to work, or advise that the employee can return to work only when released by a doctor if such is the case and promptly inform the employer of any change in the circumstances as to return to work.
When an employee will be absent for an extended period of time, he or she must keep the employer informed of the expected date of return. Some companies will have established rules requiring employees to contact them periodically while off sick. Although daily notice is not necessary, the employee should make substantial and reasonable efforts. Even in the absence of such rules, a failure to give continuing notice may evince a willful and flagrant disregard of the employer's interest.
Example - Failure to Give Continuing Notice:
The claimant was absent because of illness and was on disability insurance during the latter period of his absence. He last worked on May 18, when he informed his employer he was ill and would not report for work for a few days. On some date prior to June 1, the claimant called the employer and stated it was necessary for him to obtain dental care and he would return to his employment upon completion of the dental work. On June 1, the claimant contacted the manager and informed him he could give no specific date on which he could return to work. He made no further effort to contact the employer until July 1, at which time he was informed that in the absence of information from the claimant he had been replaced and there was no work for him.
The claimant's failure to give notice of the reason for his continuing absence from his work was not a good faith error in judgment, but rather, a wilful omission on his part. The employer was not fully aware of the reason for the claimant’s absence nor did the employer have any idea as to when to expect the claimant back to work. The claimant's actions were not those of "a reasonably prudent person, he knowingly failed to give his employer proper notification of his absences and thereby wilfully disregarded its interests."
Where prior notice has been given and accepted by the employer, a failure to give further notice will not necessarily be misconduct.
Example - Prior Notice Given:
The claimant was absent from work between October 1 and November 10, because she was physically unable to work. On October 1, she notified her employer's medical department that her physician had advised her to rest, and she was instructed not to return to work until she had obtained a medical release. The claimant subsequently contacted her employer on several occasions, the last of which was on October 27 when she had her sister call the employer to tell him she was still unable to come to work. She remained disabled until December 10 but made no further contact with her employer. On November 10, the employer terminated her.
The claimant could reasonably conclude that no further action was necessary on her part while she remained disabled. She had been instructed not to return to work unless she could present a release from her physician, and this the claimant could not do until December 10. In view of the employer's instruction, the claimant could not foresee that her failure to give continuing notice would result in her termination. Thus, while the claimant's failure to contact her employer between October 28 and November 10 may have been an exercise in poor judgment, it was not a willful and flagrant disregard of the employer's interests.
- Use of Another to Notify
Sometimes, a claimant will allege that he or she was unable to call in but that he or she requested another person to call in for him or her. The person the claimant requested to perform this task did not do so, and the claimant was discharged for failure to notify the employer. In those cases, whether the claimant is eligible depends on whether the claimant's actions were those of a reasonable and prudent person desirous of retaining employment, and whether the claim ant's actions were an intentional disregard of her obligation to the employer, or merely a good faith error of judgment.
Example - Had Friend Notify:
The claimant last worked on a Friday. He was due to report for work the following Monday but did not do so because he was ill. Although he was absent due to illness all week, he did not see a doctor. He had a telephone but stated he "didn't feel like" calling the employer. On Tuesday evening, a friend visited him and said he would notify the claimant's employer. The claimant assumed the friend had done so but did not check. The claimant had a prior record of absenteeism and, on the last occasion, had been warned that any further unexcused absence would result in his discharge. When he reported for work the following Monday, his employer informed him he had been discharged for unreported absence.
The claimant was held ineligible. His actions indicate that he did not care if he was discharged or not. He knew, having received a prior warning, that he would be discharged if his absence was unreported. Despite this knowledge, he made no attempt to contact his employer on his first day of absence even though he had a phone. The responsibility for notifying the employer was his. A reasonable and prudent person desirous of retaining his employment certainly would have called his employer himself on the first day of absence. The claimant's failure in this regard was an intentional disregard of his obligation to his employer.
Occasionally, a claimant will ask another to notify the employer because there is no other means of communication open to him or her.
Example - Use of Another to Notify - Reasonable:
The claimant, a construction laborer, worked on a job where there was no phone. On Monday, he was ill and unable to go to work. When a fellow worker with whom he rode to work came by to pick him up, he asked him to notify the foreman. Although the fellow-worker promised to do so, he failed to notify the foreman. When the claimant reported for work on Tuesday, he was informed he had been replaced because of his unreported absence.
The failure of the fellow-worker to notify would not make the discharge for misconduct. The claimant acted in a reasonable and prudent manner. He attempted to satisfy his obligation to his employer by the only means open to him. There was no intentional disregard of this obligation, hence, there is no misconduct.
Even had the employer had a phone on the job, the claimant's use of another to notify the employer may have been reasonable if the claim ant himself had no phone. For example, assume that in the above case, the claimant would have to go to a neighbor's or a nearby store to call, but to do so could have aggravated his illness. Under these circumstances, the claimant' use of another still would have been reasonable. An employee's obligation to his employer does not include doing things which would work an undue hardship on him.
If making notification himself or herself would only inconvenience the claimant, his or her use of another would not be reasonable unless he or she was reasonably assured of the reliability of the person selected. A claimant normally could be reasonably sure that a member of his or her immediate family would notify the employer of the claimant's absence when requested to do so. He or she also normally could reasonably expect a friend to make the requested notification when the friend could do so without inconveniencing himself or herself (as a fellow-employee who worked in the same department or for the same supervisor). In either case, reasonable assurance of reliability would be greatly increased where the person selected to notify the employer had previously performed this same task successfully.
Where the claimant has received prior warnings from his or her employer that future unreported absence will result in discharge, it is reasonable to assume that, if the claimant genuinely desires to retain employment, he or she would want to make certain that the employer was notified by personally doing so if possible.
- Notice Given, Permission Not Granted
Notice alone, if the reason for absence is not compelling and if the employer does not grant permission for the absence, would not excuse the employee if he or she failed to appear for work as scheduled.
Example - Permission Not Granted:
The claimant had been granted a three-day leave of absence. Before the leave had expired, the claimant telephoned his place of employment and told an unidentified individual that he had to go to New York because of an emergency. The claimant left for New York knowing that no extension of his leave of absence had been granted, and that he had not contacted the company official who had authority to grant an extension of his leave of absence. When he reported back to work, he was discharged. The employer’s policy provided that (1) in case of an emergency, an employee may, upon a written request, obtain a maximum 30 day leave of absence, and (2) employees who were absent without explanation or leave would be terminated after seven days.
In this case the claimant left work to go to New York to obtain financial aid from a friend. He was absent without leave for approximately ten days. He left knowing that he had not been granted an extension of his leave of absence and that he had not made proper application for an extension of his leave of absence. The claimant willfully and materially breached a duty owed the employer.
Occasionally, notice of absence is given when an employee leaves because of an emergency and the employer will not have had the opportunity to either grant or refuse the leave. If this is the case, the compelling nature of the absence would control the determination of eligibility.
Example - Notice Given Under Emergency, No Permission:
The claimant left California over the weekend to go to Ohio where an aunt was seriously ill. The claimant had been orphaned at age 12 and had been raised by this aunt. Unable to reach the employer by telephone, the claimant sent a note explaining her absence. In addition, she telegraphed her Ohio address to the employer. When she returned she was terminated and was told that a leave of absence would not have been granted under those circumstances anyhow.
The claimant’s actions were clearly those of a reasonable and prudent person desirous of retaining her employment. She had good cause for absenting herself from her work and, since she took reasonable steps to preserve her employment, she was not discharged for misconduct.
- Notice Not Given in Accordance with Employer Rule
The employer may have a known rule requiring that notice of intended absence be given to a specific individual. If this is the case, the claimant's notification to a different individual may be equivalent to no notice at all. However, if the claimant's message gets to the individual specified by the employer rule, the rule would have been complied with in substance, even though relayed by a third party. For example, an employer's rule may specify that notice of absence must be given to the Personnel Manager. If an employee phoned an office worker and the office worker promptly informed the Personnel Manager, the claimant would have complied in substance with the employer's rule and would not be subject to a disqualification because of improper notice.
Often it is necessary to determine if the claimant has a compelling reason for notifying an individual other than the one specified by the employer. If a compelling reason is shown, there would be no misconduct.
Example - Noncompliance With Employer Rule, Compelling Reason:
The employers’ rules provided for discharge of an employee for failure to notify the Personnel Department of the reason for absence within 72 hours immediately following the first shift the employee is absent. The claimant became ill Wednesday night. On Thursday morning he called the employer at 6:30 A.M. and left a message with one of the guards to tell the foreman that he was unable to work due to illness and would probably be off until the following Monday. The claimant had no phone and had to walk three-quarters of a mile to a pay phone. On that occasion, he called the employer at 6:30 A.M. because his wife was subject to epileptic seizures and she was sleeping at that hour and less subject to having an attack. The guard failed to relay the message. The employer discharged the claimant for failing to make proper notification.
It is true that the claimant did not notify the Personnel Department as required by company policy. However, the claimant did call the employer at his first opportunity. Since the opportunity was during a period of time when the claimant's foreman or the employer's personnel staff were not on the premises, the guard would be the logical person to deliver any messages left with him by the claimant. The claimant had a compelling reason for being absent from work (his own illness) and a compelling reason for notifying the guard rather than the Personnel Department as required by the employer's rules (his wife's illness). His discharge was for reasons other than misconduct. It should, however, be noted that had either of the "compelling reasons" been absent, the discharge would have been for misconduct.
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