12. Did the Claimant Engage in Deliberate Misconduct?

Deliberate misconduct is the intentional disregard of standards of behavior that the employer has a right to expect. BR-106310 (7/16/08) (Key) (claimant’s negligent failure to check a catheter does not result in disqualification, notwithstanding the gravity of the error). Employers may establish these standards by rule, policy, warnings, direct order, or otherwise. Furthermore, the employer bears the burden of proving by substantial and credible evidence that the conduct was deliberate.  Hogan v. Dir. of the Div. of Unemployment Assistance, Boston Municipal Court, CA 1001 CV 2825 (2010) (holding plaintiff eligible for benefits where he was terminated for falling asleep in a company car after his shift had ended); BR-0033 4158 64 (5/28/20) (finding employer failed to meet burden in establishing claimant engaged in alleged misconduct where the only evidence of alleged misconduct was HR manager’s testimony and the HR manager did not witness the alleged incident firsthand).

Mere unsatisfactory performance is not misconduct, unless the employer proves that the claimant deliberately failed to perform their work to the employer’s satisfaction. Trustees of Deerfield Academy v. Dir. of the Div. of Emp't Sec., 382 Mass. 26, 413 N.E.2d 731 (1980); Reavey v. Dir. of the Div. of Emp't Sec., 377 Mass. 913, 387 N.E.2d 581 (1979); BR-19419 (2/20/14). Employee negligence is not deliberate misconduct. Garfield v. Dir. of the Div. of Emp't Sec., 377 Mass. 94, 97, 384 N.E.2d 642 (1979); BR-125322 (7/25/14); BR-106310 (7/16/08). See also BR-0019 6517 85 (3/21/17) (Key); BR-0008 9856 93 (1/9/14) (Key); BR-110349 (6/6/10) (Key); BR-109435 (3/15/10) (Key).

Conduct that is generally unsatisfactory does not constitute misconduct. Nantucket Cottage Hosp. v. Dir. of the Div. of Emp't 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), available at https://www.mass.gov/doc/br-109435/ (unsatisfactory performance not deliberate misconduct where workplace errors may have resulted from allergies to mold growing in workplace); BR-123168-A (11/30/12) (profane language toward a customer is not deliberate misconduct where the claimant emotionally reacted to a customer’s racist comments about claimant’s national origin/ethnicity).

Absence or tardiness for compelling reasons is not misconduct, but courts and the Board have held that failure to notify the employer in accordance with company rules could be. Hoye v. Dir. of the Div. of Emp't 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. Dir. of the Div. of Emp't 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)  8:30). However, advocates should explore whether the claimant had a good-faith lapse in judgment in failing to provide a note. BR-0066 8290 72 (2/1/22) (Claimant’s failure to provide doctor’s note amounted at most to a good-faith lapse in judgment, rather than deliberate misconduct in willful disregard of the employer’s interest). Advocates should also evaluate whether the employer’s notice requirement complies with and is reasonable in light of the Massachusetts Earned Sick Time law and regulations, which permit employers to require notice prior to the absence only when it is foreseeable, and imposes conditions on when employers can require employees to provide medical documentation (as well as the type of documentation they may request) following the employee’s use of earned sick time. G.L. c. 149, § 148C, 940 CMR 33.05-33.06

The Board has held a claimant’s tardiness not to be the result of deliberate misconduct in a number of circumstances. See, e.g.,  BR 0030 2225 88 (8/30/19)(Key) (where the employer changed the claimant’s shift from 2 p.m. to 6 a.m., although the claimant received multiple warnings for her tardiness, she was not disqualified due to her sincere efforts to get to work on time); BR-1951632 (11/1/13)(arriving late to work is not deliberate misconduct where the claimant set an alarm clock but slept through it; the setting of the alarm demonstrates an intent to arrive at work on time); BR 0032 6619 01 (5/29/20) (Claimant erroneously told by coworker that employer did not expect him to work a shift did not engage in misconduct. A claimant who believes, erroneously or not, that he was not expected to work his shift cannot be engaged in deliberate work).misconduct for failure to report for work); BR-0075 6603 69 (10/18/22) (Claimant discharged for tardiness did not engage in deliberate misconduct where tardiness was not the result of claimant’s deliberate action or intent, but rather was due to narcolepsy medication losing effectiveness following COVID-19 diagnosis.).

The employer’s expectation allegedly violated by the claimant must be reasonable to result in disqualification for deliberate misconduct in willful disregard of the employer’s interest. BR-0047 6173 16 (6/6/22) (Claimant discharged for failure to attend an investigatory meeting not disqualified for engaging in deliberate misconduct in willful disregard where employer had no reasonable explanation for insisting that the meeting take place in-person rather than virtually or by phone, where claimant encountered childcare issues which prevented her from attending the meeting in-person).

Employees who avail themselves of a legal right cannot thereby commit misconduct. See Kinch v. Dir. of the Div. of Emp't 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. Advocates should therefore assess whether the employer’s attendance and notification rules comply with Massachusetts’ Earned Sick Time law and regulations, M.G.L. c. 149, § 148C.; 940 CMR 33.00. For example, the Earned Sick Time law limits when an employer can require medical documentation to support an employee’s absence, and provides employees at least seven days from the time they took Earned Sick Time to submit such documentation to the employer. 940 CMR 33.06.

Similarly, an employee charged with a crime who avails themself of the “admission to sufficient facts” procedure permitted by the rules of criminal procedure does not thereby commit misconduct. See Wardell v. Dir. of the Div. of Emp't 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.)

An adjudication of the claimed right by a court or another agency, however, may have a preclusive effect. Lewis v. Dir. of the Div. of Emp't Sec., 379 Mass. 918, 400 N.E.2d 264 (1980) (an adverse arbitration decision under the National Labor Relations Act foreclosed claimant’s assertion that the Act protected her wearing a “Strike—G.D.” jacket to work at General Dynamics plant where the claimant and the employer were parties in both the NLRB and UI proceedings).

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. Dir. 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 a different employee had received multiple warnings before discharge); Wininger v. Dir. of the Div. of Unemployment Assistance, 80 Mass. App. Ct. 1116 (2011) (unreported) (employee who was fired for swearing was not disqualified from UI for deliberate misconduct in willful disregard of employer’s interests because swearing was directed at supervisor, not clients or outsiders, was in private, was commonplace at the office; there was no rule against swearing; the employer had never warned or disciplined the claimant in any manner in the past; the employer had never disciplined any employee for similar conduct in the past; and the employer gave the employee no opportunity to apologize). A claimant who muttered a profanity regarding a supervisor out of frustration and momentary lapse of judgment, but not actually to the supervisor, did not deliberately commit misconduct. BR-2026705 (5/27/14).