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12. Did the Claimant Engage in Deliberate Misconduct?

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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. Director 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).

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. Director of the Div. of Employment Security, 382 Mass. 26, 413 N.E.2d 731 (1980); Reavey v. Director of the Div. of Employment Security, 377 Mass. 913, 387 N.E.2d 581 (1979); BR-19419 (2/20/14). Employee negligence is not deliberate misconduct. Garfield v. Director of the Div. of Employment Security, 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 Hospital v. Director of the Div. of Employment Security, 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/files/documents/2016/08/ol/br-110354.pdf (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 failure to notify the employer in accordance with company rules is. Hoye v. Director of the Div. of Employment Security, 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 Security, 390 Mass. 1004, 457 N.E.2d 279 (1983) (employee persisted in reporting to work at 9:30 when starting time was 8:30); 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).

Employees who avails themselves of a legal right cannot thereby commit misconduct. See Kinch v. Director of the Div. of Employment Security, 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.

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. Director of the Div. of Employment Security, 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. Director of the Div. of Employment Security, 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. 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 a different employee had received multiple warnings before discharge); Wininger v. Director 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).