Deliberate misconduct is the intentional disregard of standards of behavior that the employer has a right to expect. BR-106310 (7/16/08) (claimant’s negligent failure to check a catheter does not result in disqualification, notwithstanding the gravity of the error). These standards may be established by rule, policy, warnings, direct order or otherwise.

Mere unsatisfactory performance, however, is not misconduct, unless the employer proves that the claimant deliberately failed to perform his or her work to the employer's satisfaction. Trustees of Deerfield Academy v. Director of the Div. of Employment Sec., 382 Mass. 26, 413 N.E.2d 731 (1980); Reavey v. Director of the Div. of Employment Sec., 377 Mass 913, 387 N.E.2d 581 (1979).

Conduct that is generally unsatisfactory does not constitute misconduct. Nantucket Cottage Hospital v. Director of the Div. of Employment Sec., 388 Mass. 1006, 446 N.E.2d 75 (1983) (poor personal hygiene, inability to accept criticism and profane language); BR-109435 (3/15/2010) (unsatisfactory performance not deliberate where workplace errors may have resulted from allergies to mold growing in workplace).

Absence or tardiness for compelling reasons is not misconduct, but failure to notify the employer in accordance with company rules is. Hoye v. Director of the Div. of Employment Sec., 394 Mass. 411, 475 N.E.2d 1218 (1985) (employee did not call in absence to appropriate persons, despite many prior warnings); Moore v. Director of the Div. of Employment Sec., 390 Mass. 1004, 457 N.E.2d 279 (1983) (employee persisted in reporting to work at 9:30 when starting time was 8:30).

An employee who avails himself or herself of a legal right cannot thereby commit misconduct. Kinch v. Director of the Div. of Employment Sec., 24 Mass. App. Ct. 79, 506 N.E.2d 169 (1987) (claimant refused to work hours in violation of wage and hour laws). It is immaterial whether the employee is aware of or asserts the legal right, or its source, at the time of the discharge. An adjudication of the claimed right by a court or another agency, however, may have a preclusive effect. Lewis v. Director of the Div. of Employment Sec., 397 Mass. 918, 400 N.E.2d 264 (1979) (claimant's assertion that her wearing a "Strike-G.D." jacket to work at a General Dynamics plant was protected by the National Labor Relations Act was foreclosed by an adverse arbitration decision under the Act).

Similarly, an employee charged with a crime who avails himself or herself of the "admission to sufficient facts" procedure permitted by the rules of criminal procedure does not thereby commit misconduct. Wardell v. Director of the Div. of Employment Sec., 397 Mass. 433, 491 N.E.2d 1057 (1986) (junior college teacher charged with possession of marijuana with intent to distribute). Nor is an admission to sufficient facts a disqualifying "conviction" under § 25(e)(3). See Question 36.

UI benefits cannot be denied on the basis of misconduct where the claimant is alleged to have violated a rule that was not uniformly enforced. Encore Images, Inc. v. Director of the Div. of Unemployment Assistance, 76 Mass. App. Ct., 1109 (2010) (unreported) (employee fired for vulgarity could not be denied UI benefits for misconduct because employees regularly used profanity at work and one employee received multiple warnings before discharge).

The Supreme Judicial Court has held that even though the employee's disqualification from UI had been upheld on a different ground than that given by the employer, the decision was correct if the ground given arose out of the same conduct. Quintal v. Commissioner of the Dep't of Employment and Training, 418 Mass. 855, 641 N.E.2d 1338 (1994).

No Longer "Solely Due to Misconduct."

Because of a 1992 statutory change which took out the word "solely," an employer is no longer required to prove that the deliberate misconduct was the sole reason for the employee's discharge. According to the Service Representatives Handbook (SRH), an employer may now support the reasons for discharge with evidence of prior incidents so long as the final act or reason for discharge constitutes deliberate misconduct in willful disregard of the employer's interest. SRH § 1305(B).