In 1992, G.L. c. 151A, § 25(e) was amended to add a new disqualification ground. In addition to deliberate misconduct, an employee who is discharged for a “knowing violation of a reasonable and uniformly enforced rule or policy” is disqualified unless the violation is “a result of the employee’s incompetence.” The SJC’s decision in Still v. Comm'r of the Dept. of Emp't and Training, 423 Mass. 805, 672 N.E.2d 105 (1996) is the lead case interpreting this ground for disqualification.
According to the G.L. c. 151A, § 25(e), ¶ 2, an employee may be disqualified under this provision if the employer establishes that:
- the rule or policy existed;
- it was effectively communicated to the employee, i.e., in a language and mannor understood by the claimant (see AH c. 8, § 1D);
- it was reasonable;
- it was uniformly enforced, both as to the claimant and other employees;
- the claimant knowingly violated the rule or policy; and
- the rule violation was not the result of the claimant’s incompetence.
The employer has the burden of proving these elements by introducing “substantial and credible” evidence on each element. For example, an employee discharged for failing a drug test administered before he was hired could not be disqualified because the employer’s work rule applied only to drug usage during or affecting the employment. O’Connor v. Comm'r of the Dep’t of Emp't & Training, 422 Mass. 1007, 664 N.E.2d 441 (1996).
Moreover, the Board held that more than a positive workplace marijuana test is required for a claimant to be determined ineligible for UI. The Board pointed out that the marijuana decriminalization statute, G.L. c. 94C, § 32L, states that possession of one ounce or less of marijuana shall not provide a basis to deny UI benefits. BR - 0012004801-07 (08/04/2014).
However, the Appeals Court has held that an employer who fails to meet its burden under the “knowing rule violation” can still meet its burden of showing deliberate misconduct. Gupta v. Deputy Dir. of the Div. of Emp't & Training, 62 Mass. App. Ct. 579, 818 N.E.2d 217 (2004) (an employee’s rude remark to a customer constituted disqualifying deliberate misconduct, even though the employer originally justified the firing on the grounds of a knowing violation of a work rule and had failed to present substantial evidence to support its firing for this reason).