The main issue in misconduct cases is not usually whether misconduct was committed but whether the claimant willfully disregarded the employer's interest. This determination requires inquiry into the employee's state of mind at the time he or she committed the wrongful act; he or she must have known that the act was contrary to the employer's interest or expectations. This is sometimes framed as a question of intent: Did the employee intend to disregard the employer's interest?

In establishing state of mind, the history of the employment relationship is important. As a general matter, an employee cannot be found to have the requisite state of mind if he or she has not been made aware of the employer's expectations through rules, policies, warnings, instructions and so forth. If, however, the conduct at issue is clearly wrongful, such as theft or falsification of records, a claimant may be found to have acted in willful disregard even in the absence of explicit instructions not to engage in the conduct. Jorgenson v. Director of the Div. of Employment Sec., 394 Mass. 800, 477 N.E.2d 1005 (1985) (falsifying pay records); Babize v. Director of the Div. of Employment Sec., 394 Mass. 806, 477 N.E.2d 1009 (1985) (same).  Where an allegation of theft or misappropriation of funds is the basis for discharge, the employer must provide "substantial and credible evidence or proof" that the theft or misappropriation occurred, SRH § 1334, and that the claimant was involved in the theft. 

Where obviously intentional conduct is present, the court will not require specific state‑of‑mind findings. Grise v. Director of the Div. of Employment Sec., 393 Mass. 271, 471 N.E.2d 71 (1984) (claimant left at beginning of shift after learning he would be working with supervisor with whom he had personality conflict). Sharon v. Director of the Div. of Employment Sec., 390 Mass. 376, 455 N.E.2d 1214 (1983) (claimant publicly insulted supervisor, then refused to apologize publicly).

A claimant's open "bad attitude" will facilitate a finding of willful disregard. Lycurgus v. Director of the Div. of Employment Sec., 391 Mass. 623, 462 N.E.2d 326 (1984) (claimant discharged for tardiness after warnings where he had stated to supervisor that he was not required to be at work until 9:00 a.m. "on the dot").

An employee who reasonably believes that his or her disobedience of an order is required to further a more important purpose of the employer is not acting in willful disregard of the employer's interest. Jones v. Director of the Div. of Employment Sec., 392 Mass. 148, 465 N.E.2d 245 (1984) (employee who continued to work on deadline, although ordered not to do the work, not disqualified although he had previous warning for insubordination). Similarly, a worker who is discharged for his or her refusal to follow an order that requires the worker to violate state or federal law is not disqualified. SRH §§ 1330(A), 1332(A).

Even if the employee's judgment is erroneous, good faith errors are not willful disregard of the employer's interest. Garfield v. Director of the Div. of Employment Sec., 377 Mass. 94, 384 N.E.2d 642 (1979) (rearranging the store schedule without notifying district manager).

Personnel policies known to the employee are probative evidence regarding the claimant's state of mind. An employee's reliance on these policies, where they may contradict other statements of the employer, can be used to show a lack of willful disregard. Goodridge v. Director of the Div. of Employment Sec., 375 Mass. 434, 377 N.E.2d 927 (1978) (employee left to file discrimination charge with Equal Employment Opportunity Commission where he thought personnel handbook gave permission to do so; employer claimed he left without permission); Hawkins v. Director of the Div. of Employment Sec., 392 Mass. 305, 465 N.E.2d 786 (1984) (claimant disqualified when fired for refusing to take off radio earphones while working after being warned twice).

Mitigating Circumstances

The presence of mitigating circumstances should be explored and presented in both misconduct and rule violation cases. If an employee's misconduct is attributable to mitigating circumstances, then he or she has not acted in willful disregard. In the case of an employee fired for being late after a prior warning, for example, there is no willful disregard if the lateness was due to an extraordinary circumstance, such as sudden illness of a family member. Similarly, the act of falling asleep on the job if occasioned by mitigating factors is not disqualifying. Wedgewood v. Director of the Div. of Employment Sec., 25 Mass. App. Ct. 30, 514 N.E.2d 680 (1987).

Also, if the claimant is an alcoholic and his or her conduct is a "product of an irresistible compulsion to drink," it will not be regarded as intentional misconduct. SRH § 1336. At present, the DUA does not treat drug abuse in the same manner, and a drug‑addicted client is more likely to be regarded as having acted willfully even while under the influence. Id. See Question 34.

Any discharge due to circumstances resulting from domestic violence, including the need to address the physical, psychological and legal effects of domestic violence, is not disqualifying; for example, a claimant who was discharged for violating the attendance policy due to incidents of domestic violence, or her need to seek treatment or protection. SRH §§ 1043, 1305(B). See Question 33 for discussion of domestic violence in separation cases.