Misconduct MC 310
Neglect of Duty
This section discusses the principles to be applied in cases where the claimant is discharged for allegedly:
- Neglecting to perform all the duties of his or her job, or failing to complete or do some particular task.
- Sleeping on the job.
- Temporarily ceasing to work.
- Wasting production time.
This section is different from Manner of Performing Work, MC 300, which discusses cases where the claimant actually performs his or her duties but the performance is not satisfactory. If the claimant is discharged for failure to follow a specific instruction or order, refer to Insubordination, MC 255.
A. Duties Not Discharged
"Neglect" means "to be remiss in attending to or to fail to do." If a claimant has been amiss in attending to or has failed to do the duties of his or her job, he or she obviously will have violated a standard of behavior which the employer has a right to expect of his or her employees.
Title 22, Section 1256-38(a) likewise provides:
An individual's failure to perform properly or neglect of duty is wilful and misconduct if he or she intentionally, knowingly, or deliberately fails to perform, or performs in a grossly negligent manner, or repeatedly performs negligently after prior warning or reprimand and in substantial disregard of the employer's interests.
An employee's neglect of duty may be attributable to either ordinary neglect or gross negligence. "Ordinary" neglect would consist of acts of minor negligence, where no substantial damage to the employer can result. Examples of ordinary neglect would be: a waitress neglecting to fill all the sugar bowls at her assigned tables: a janitor neglecting to dust all desks in offices assigned to him to clean; or a rest-room attendant neglecting to fill receptacles with paper towels. Gross negligence generally involves substantial damage (actual or potential) to the employer's interests. For an understanding of "gross negligence," see Manner of Performing Work, MC 300 under A. General Rule.
When a claimant is discharged because of his or her failure to discharge certain duties, the discharge would not be for misconduct, if the neglect is:
1. Not wilful. (The neglect is not wilful if it is due to inefficiency, inability or incapacity, or good faith errors in judgment or discretion.)
2. An isolated instance, except when it is gross negligence.
Example Neglect Not Wilful:
The employer testified that the claimant, a fry cook, was discharged because she failed to clean up her equipment at her station at the end of each eight-hour shift and that she maintained a "sarcastic attitude toward customers." The claimant admitted that on occasions she had failed to sweep the floor around her station but that on busy days she did not have time, and had offered to stay after work to perform such duties. She denied the employer's unsupported allegation concerning her attitude toward the patrons.
In this case, the claimant's explanation of her failure to perform certain duties was reasonable and understandable, especially considering her offer to stay after work in order to perform those duties. The record does not establish that the claimant wilfully or intentionally disregarded the employer's interest or that occurrences forming the basis for the discharge were deliberate violations of behavior which the employer has the right to expect of his employee. The discharge was not for misconduct.
If neglect of duty is due to inefficiency or inability, misconduct is not involved, even though there may be prior warnings and reprimands.
Example Neglect due to Inefficiency, Prior Warnings:
The employer alleged that the claimant, a janitress, had been lax in maintaining supplies in the rest rooms and did not keep the rooms in a proper state of order and cleanliness. It was further alleged that she spent much of her time in reading and knitting. She had been told on prior occasions that complaints had been received concerning the conditions of the rest rooms and that improvement was expected.
The claimant said that after the employer moved a year ago, she was assigned additional duties which included the cleaning of four rest rooms, the three nurses' rooms, the personnel office, and the coffee shop in addition to assisting during the coffee hour. She admitted that she did spend some time reading and knitting but that this usually occurred during the rest periods and noon hour.
While the claimant may have been inefficient and unable to perform the work to the employer’s standards, there is no evidence that she intentionally neglected her duties.
Example Isolated Instance:
The claimant had been employed by an automobile dealer. He was dispatched periodically to a freight depot for the purpose of driving new automobiles to the company's storage warehouse, a distance of one and one-half miles from the unloading yard.
The employer had service employees who were supposed to fill the automobiles with the necessary gasoline, oil and water, prior to their being driven to the warehouse. The employer advised the drivers that they were to check the instrument panel gauges for oil pressure and temperature before driving the vehicle and that any driver who caused damage to a vehicle by driving it without oil or water would be discharged.
The claimant damaged the connecting rod and main bearing of an automobile which he drove without oil to the warehouse. The repairs were costly to the employer and the claimant was discharged. There was a conflict as to whether the oil gauge on the automobile was functioning properly.
The discharge is not for misconduct since a single act of negligence with relatively minor damage to the employer’s interest is involved and there was no prior violation or warning or reprimand.
On the other hand, the resulting discharge would be for misconduct if the claimant's neglect is:
1. Wilful, or without reasonable explanation
2. Recurrent especially after warnings or reprimands, or due to gross negligence.
Example 1 - Wilful Neglect:
In P-B-400, the claimant was a production inspector on the assembly line. His duties involved the inspection of trucks moving along the assembly line. Among the items which he was required to inspect were windshield wipers and defrosters. In the morning of his last day of work, the foreman observed that the claimant did not check the windshield wipers and defroster on a particular vehicle. There followed a conference between the claimant, his committee man, and supervisory personnel. As a result of the conference the claimant was warned that if he failed to follow instructions disciplinary action would result.
During the afternoon, the general foreman and production foreman observed that the claimant did not check the defroster on another vehicle. The required procedure was to turn on the blower and place one's hand above the instrument panel to determine whether air was coming through the vent. The claimant was suspended and then discharged for this incident.
According to the claimant, there was a personality conflict between himself and the general foreman. He contended that he was being harassed. Shortly before the last day of work, the claimant accused the general foreman of deliberately disconnecting a wire on a truck. The claimant concluded that the incident on the last day of work was an attempt by the general foreman to "set up" the claimant. These allegations were denied by the general foreman. The claimant had been warned and reprimanded before for other incidents.
The Board found the claimant ineligible and stated:
In the present case, the evidence is conflicting concerning the events leading to the claimant's discharge. However, from the weight of the evidence it appears that the claimant deliberately failed to carry out his duties on (last day of work) although earlier that very same day he had been warned of the consequences. The claimant's actions demonstrated misconduct within the meaning of Section 1256 of the code.
Example 2 - Wilful Neglect:
The claimant worked for a door manufacturing company as the night floor supervisor. The employer had received complaints from the employees that the claimant was not on the floor supervising employees but was spending excessive periods of time in the factory office. On the last night of his work, the employer determined through investigation and a video camera that the claimant entered an office at 12:48 a.m. and remained in the office with the drapes drawn until 5:25 a.m.
The claimant admitted that he was in the room but stated that he was reading periodicals. The employer contended that it was improper for the claimant to be in the room under any circumstances for that period of time because he was required to be on the floor supervising the employees. By not supervising the employees, the claimant created a hazard to the safety of the employees by not being available to them. It also resulted in defective merchandise.
The discharge was for misconduct. The claimant intentionally neglected his duty as a supervisor by locking himself in a private office. He had no authority to enter the office for any period of time. He had no authority to enter there to read periodicals. He abandoned his job duties to the detriment of the employer.
What if the claimant contends that he or she just forgets to do the duties? Is "forgetfulness" a reasonable explanation for the claimant's neglect of duties? If the claimant has been warned before about performing his or her duties, "forgetfulness" will not render the discharge for reasons other than misconduct. When the employer has put an employee on notice that a certain task has to be performed, the employee will violate a duty owed the employer if he or she forgets to do the task.
Example 1 - "I Forgot":
The claimant was a shipping and receiving clerk. One of the most important duties the claimant had was to perform a monthly inventory. The claimant would "forget" to do this job frequently, for which he had been counseled several times. Prior to June 1, the employer reminded the claimant on May 26 and May 29 about the importance of completing the inventory before 9:00 a.m. on June 1. The employer had also warned the claimant several times that he would be terminated if he did not complete the inventory by 9:00 a.m. on June 1. When the claimant failed to do so, he was discharged.
The claimant testified that he was never told "in so many words" that he would be terminated if he failed to do the inventory. He recalls being told "he would have serious problems if he failed to do the inventory." He testified he knew that he was supposed to do the inventory before 9:00 a.m. on June 1. The only reason he could give for failing to do so was that he "forgot."
The discharge was for misconduct. The claimant's continued failure to do the inventory as required, after being placed on notice that his performance was unsatisfactory, was intentional and constituted a wilful disregard of the employer's interests.
Example 2 - "I Forgot":
The claimant was employed as an announcer for a radio station. The employer instructed the announcers that they were under an obligation to fill out logs accurately. They were to take readings of the transmitter while they were on the air and report them at the time they took the reading. This was necessary because of Federal Communications Regulations, which require that the log accurately reflect the station operation. Employees are required to make accurate and timely readings from the log and to certify that they are correct.
The first time he failed to make accurate and timely readings, he was given a general warning. The second time he failed to do so, he was specifically warned in writing. The day before he was discharged, the transmitter was off full power at 10:39 and the auxiliary transmitter was off at 11:03 and back on at 11:53. The claimant did not note this in the log. The claimant was discharged for the neglect after six months of employment.
When asked about his failure to make accurate and timely readings, he simply stated that he forgot.
The discharge was for misconduct. The claimant was required to make accurate and timely readings of the transmitter. It is necessary that an accurate log be kept in order to maintain the station's license. Although the claimant was given warnings, he continued to fail to make accurate and timely reading. His failure is not justified by the fact that he forgot.
When the neglect is so minor and inconsequential, the claimant's failure, standing alone, would not amount to misconduct. Even in such a case, however, if there have been previous warnings and reprimands, the claimant's failure could constitute misconduct.
An employee may use such means as destruction or falsification of records to conceal from the employer his or her failure to perform certain duties. Such attempts to conceal will invariably be wilful and should be taken into consideration in the determination of misconduct involving neglect of duty. Sometimes the neglect of duty itself will not amount to misconduct, but coupled with the attempted concealment by the claimant, will constitute misconduct. This would be especially true where the employer suffered damage as a result of the neglect, but could have taken steps to avoid damage if he or she were aware of the neglect.
B. Sleeping on the Job
Sleeping during hours when the claimant should have been performing his or her duties is a serious matter. A claimant would be discharged for misconduct if by sleeping on the job he or she evinced:
1. A deliberate and substantial disregard of the employer's interests.
2. Gross negligence.
Example - Act of Sleeping Deliberate:
On his last day of work the claimant, a janitor, was discovered sleeping on a couch in one of the employer's offices where he was supposed to be working. Prior to lying down on the couch he had removed his glasses and placed them on a desk nearby.
The employer alleged that the claimant had been asleep for several hours as evidenced by the fact that much less than his normal amount of work had been performed since he had come on duty. The foreman who had found the claimant sleeping awakened him and told him to resume his duties. The claimant continued working until the end of the shift when he was discharged. The record indicates that the claimant was not subject to close supervision while performing his duties. He had not previously violated any rules of the employer nor had he ever been before found asleep on the job.
The discharge was for misconduct. Certainly the claimant’s deliberate act of sleeping while on duty as shown by the fact that he had removed his glasses prior to lying down on the couch was more than mere inefficiency or good faith error in judgment or discretion."
It should be noted that it need not always be shown that an employee deliberately intended to sleep while on duty, to constitute misconduct. For example, the claimant could have fallen asleep because of medication. This explanation generally would not be accepted as excuse for sleeping on the job. If the claimant was too sick to work or knew that the medication would induce drowsiness, the claimant should ask for sick leave.
Example - Asleep due to Medication:
The claimant was found asleep on the job and was discharged. The claimant stated that he was asleep because he had been suffering with a tooth condition and prior to coming to work, had taken aspirin and another type of sedative tablet to relieve the pain of a toothache. The claimant had previously been absent several days because of the toothache.
The claimant's record indicated prior warnings about loafing on the job and when he was reprimanded he had indicated that he was not concerned with remaining on the job. The claimant alleged that he had reported for work, though he was sick, because he had been cautioned that any further absences would result in his discharge. This warning was given after a three-day absence due to the same tooth condition. However, shortly afterward, he was again absent from work for one day without any disciplinary action on the part of the employer.
The discharge was for misconduct. In this case, the claimant should have requested sick leave or informed his immediate supervisor of his inability to continue with his duties. Had the claimant called the employer, explained the circumstances, and then come to work at the insistence of his employer, and subsequently fell asleep, the discharge would not be for misconduct.
The fact that a claimant did not get sufficient sleep the night before also would not be an adequate excuse for sleeping on duty.
Example - Insufficient Sleep the Night Before:
The claimant, a taxicab driver, was discharged after he fell asleep and became involved in an accident with another car. The claimant admitted that, prior to the accident he had not obtained his customary sleep and felt tired and that he had had the car heater on and the windows closed; but he asserted that he had not felt tired enough to fall asleep and had no idea that that might occur. The claimant produced no medical explanation of a physical ailment which would cause any sudden sleepiness.
It is well known that falling asleep is a common cause of automobile accidents; and the driver of a taxicab has an added responsibility to either get enough sleep before reporting for work or calling the employer to explain why he could not report for work. The claimant’s failure to take such precautions manifests a high degree of carelessness, the discharge would be for misconduct.
What if the claimant alleges that he or she fell asleep due to a physical ailment which suddenly caused sleepiness? If this is the case, the discharge would not be for misconduct. However, medical substantiation is required before the discharge is considered not for misconduct.
What if the claimant just "dozed off" momentarily?
Example - "Dozing Off":
In P-B-185, the claimant's work consisted of inspecting hot water tanks. He worked from 3:30 p.m. to 12 midnight. In performing this work, he had to lift the tanks and move them about. He estimated that he inspected between 200 and 300 tanks an hour. On the last day of work he went into a small glass-enclosed office, seated himself at a desk therein, and prepared to write a report of defects he had found.
The claimant testified that he had momentarily dozed while remaining in a seated position. A supervisor awakened him and discharged him. At the moment he was awakened, the claimant still had a pencil in his right hand and was holding a report form on the desk with his left hand. He was still seated in an upright position. The Board found him eligible and stated:
[T]he claimant testified under oath . . . that he had only 'dozed off' momentarily. The claimant's testimony is supported by the fact that he was seated in an erect position with a pencil in his hand. We do not mean to imply that it need always be shown that a claimant intended to sleep to find him guilty of misconduct. We believe only that in the instant case the claimant was guilty of an isolated instance of mere inadvertence or ordinary negligence.
What if the claimant contends that he or she falls asleep due to tiredness? Even though tired, the claimant should refrain from sleeping on the job. If he or she is too tired to work, he or she should let the employer know and ask to be relieved. On the other hand, if the claimant is asked to work overtime or double shift, and falls asleep unintentionally due to tiredness, the discharge will not be for misconduct.
C. Temporary Cessation of Work
This discusses eligibility factors which arise when the claimant is discharged because he or she ceases working without authorization or because he or she leaves before quitting time.
- Ceasing Work
When a claimant is discharged because he or she stops working without authorization, the following factors should be considered;
- Claimant’s reasons for ceasing work.
- Claimant's reasons for failing to obtain prior authorization.
- Length of time the claimant failed to work.
Seriousness of the damage to the employer the claimant's ceasing to work would have caused.
If the claimant's reasons for ceasing to work and for failing to obtain prior authorization are compelling, the claimant's actions normally will not be misconduct. For a discussion on compelling reasons for absence from work and failure to notify the employer, see Attendance, MC 15.
If the claimant had no good cause for ceasing work and/or for failing to obtain authorization, he or she will have violated a standard of behavior which the employer has the right to expect of him or her. The determination of misconduct will then depend upon how substantially the claimant has violated the standard of behavior. This in turn will depend upon the length of time the claimant failed to work and the seriousness of the work cessation in terms of what damage an employer could have sustained as a result of the claimant's cessation of work.
The longer a claimant's work cessation, the more substantial is the disregard of standards of behavior which the employer has the right to expect.
Example - Ceasing Work, no Compelling Reason:
The claimant was discharged for being absent from his work station for two hours. The claimant acknowledged his absence from his work station and stated his return had been delayed due to a conversation with another employee. The claimant had previously received warnings for like actions.
The claimant would be ineligible. He acknowledged his absence from his work station and did not present any reasonable excuse for the extended absence. Considering that the claimant had been previously reprimanded for neglecting his work, his actions constituted misconduct . . . ."
Even brief cessations of work (such as unnecessary trips to the water cooler, visiting other employees, etc.) can constitute misconduct if persisted in after warnings or reprimands. In the absence of warnings or reprimands, such brief work cessations will not normally be misconduct unless they can cause substantial injury to the employer and the claimant is aware of the fact.
A claimant may be discharged because he or she "walked off" the job. "Walking off" the job is considered another form of ceasing work and the issue is adjudicated according to the same principles.
Example - Walking Off the Job:
The claimant was a cook. He had worked for approximately one month for the employer and was discharged after walking off the job for approximately half an hour.
The owner had made some changes in the menu which required that the main course be ready to be served in a shorter period of time after the salad or soup was served. This created problems in getting the main course properly prepared and cooked, and because the various orders were not thus prepared on time, the waitresses were complaining to the claimant.
The claimant informed the waitresses that he was not the one to complain to, but the waitresses continued to complain. The orders began to back up and the situation became stressful for the claimant. He then picked up a bottle of oil, smashed it on the floor, smashed his way through a screen door, and left for approximately one half hour. He then returned to finish his shift. Because he was gone for half an hour, the customers were served extremely late.
The claimant was found ineligible. His "walking off the job" caused damages to the employer's business because the customers who were served late would not return to the restaurant.
- Leaving Early
Leaving early, in essence, is still ceasing work. If the claimant is discharged for leaving early without authorization, his or her eligibility will be determined according to the principles for ceasing work discussed above. In P-B-216, for example, the Board held that a guard who was discharged because he left early due to personal illness and only after he had asked his supervisor for a relief guard, was not discharged for misconduct, as he had a compelling reason to leave work early and properly notified the employer.
On the other hand, if there is no compelling reason for leaving early and the claimant fails to notify the employer, the discharge would be for misconduct.
Example - Leaving Early, No Compelling Reason:
The claimant worked as a lead technician for a medical center. The employer provided medical care for individuals suffering the results of the use of alcohol and controlled substances. The patients at the center are sometimes self-destructive and at other times destructive toward others.
On the evening of February 8, the claimant was scheduled to work from 4:30 p.m. to 12:30 a.m. the following day. He was the only employee in charge of a number of patients to whom he had been assigned. At about 10:00 p.m., the claimant left the premises and his patients were unattended for the balance of his shift during which some disturbances occurred. The claimant was discharged as a result.
The claimant was aware that he was required to notify his supervisor in the event that he left before the end of his shift. The claimant did not give any reason to his employer as to his early leaving.
The discharge was for misconduct. The claimant abandoned his assigned duties in the middle of the shift thereby leaving a number of patients unattended for two and one-half hours. He failed to follow known procedure to notify his supervisor he was leaving so that arrangements could be made to provide care for the patients during the balance of the shift. His actions constituted gross misconduct.
In the above example, the claimant left two and one-half hours early. What if the claimant left only a few minutes early? Such a short cessation of work could be misconduct as illustrated by the following example.
Example - Leaving Early, Gross Negligence:
The claimant worked as a guard during wartime in an aircraft plant. He was discharged because he checked out prior to the arrival of his relief. The claimant had been assigned to guard secret radio equipment which was being installed in airplanes. Custom, as well as the employer's rules, demanded that the claimant remain on his post until relieved. The claimant checked out at 4:00 p.m. because he did not think he would be paid overtime. The relief guard arrived shortly after the claimant checked out so the secret radio equipment was left unguarded at most for only a few minutes.
The claimant is ineligible. The acts which led to the claimant's discharge in this case far transcend mere inadvertence, incompetence, or as alleged by the claimant a misunderstanding. The claimant was employed as guard in a large aircraft plant engaged in the production of vital war material. At the time of the occurrence of the acts which led to the claimant's discharge, this country was still waging war. The claimant was well aware of the possibilities of sabotage and the absolute necessity of closely guarding equipment. He was assigned to guard secret and confidential equipment . . . He also was cognizant of the fact that in view of the nature of his assignment, he should remain at his post until relieved. The claimant materially breached a duty owed to the employer.
Many offices and plants have one or more "clock watchers" who habitually leave work a few minutes before quitting time; or they may cease work without actually leaving and spend the few minutes before quitting time in talking, gathering hats, coats, purses, etc., or just doing nothing. The employer has a right to expect that his employees will work until quitting time. Therefore, conduct of the kind mentioned above will violate a standard of behavior which the employer has the right to expect. To constitute misconduct, however, such conduct must be persisted in after warnings or reprimands.
D. Wasting Production Time
Whatever interferes either with the operation of the employer's business or the employer's relationship with his employees or customers is clearly damaging to the employer's interests. Such conduct as annoying other employees, engaging in excessive conversations and joking can constitute misconduct. However, such incidents, standing alone, are normally trivial and inconsequential. Accordingly, in order to constitute misconduct, the claimant must have persisted in such conduct after warnings or reprimands. In the absence of prior warnings or reprimands, the claimant's horseplay, joking and excessive conversations, etc., would amount to no more than unsatisfactory conduct and not misconduct.
Example - Horseplay and Clowning, Prior Warnings:
The claimant tampered with his employer's equipment and engaged in horseplay dangerous to himself and fellow employees over a considerable period of time. Several employees complained to the employer of the claimant's horseplay and clowning. Fellow employees did not wish to work with him because he would not do his share of the work. The claimant persisted in the course of conduct despite repeated warnings and finally was discharged.
Although some of the incidents standing alone may have been too minor and inconsequential to constitute misconduct, consideration of the entire series of incidents and of the claimant's persistent disregard of repeated warnings and instructions, establishes that the claimant deliberately disregarded standards of behavior which the employer has the right to expect of his employee.