According to the AH c. 8, §§ 1B and 1C.1, the following elements must be satisfied for a knowing violation:
- the claimant intentionally engaged in conduct (either action or inaction) that violated a rule or policy of the employer;
- the claimant was consciously aware of engaging in the conduct;
- the claimant, while engaging in the conduct, was aware that the conduct violated a rule or policy of the employer; and
- the violated rule or policy was both reasonable and uniformly enforced.
The adjudicator must consider the circumstances at the time of the violation to determine whether the employer has established that the claimant:
- knew what they were doing;
- knew that the conduct violated an employer rule or policy; and
- intentionally did it anyway.
In Still, the employer discharged the claimant for swearing at a patient who had provoked her. The Commissioner argued that because the claimant had admitted that she had prior knowledge of the employer’s policy that patients were to be free from mental and physical abuse and that she understood that the consequences of violating this policy included discharge, this was sufficient to establish that she had “knowingly violated the policy.”
The Supreme Judicial Court disagreed. It found that, in the context of G.L. c. 151A, § 25(e)(2), “‘knowing’ implies some degree of intent, and that a discharged employee is not disqualified unless it can be shown that the employee, at the time of the act, was consciously aware that the act being committed was a violation of an employer’s reasonable rule or policy.” 423 Mass. at 813, 672 N.E. at 112; accord, Franclemont v. Commissioner of the Dep’t of Employment & Training, 42 Mass. App. Ct. 267, 676 N.E.2d 1147 (1997).
The Still Court explicitly found that “Still’s testimony . . . supports a conclusion that she lacked the state of mind required to find a ‘knowing’ violation.” 423 Mass. at 814. The Court further found that although “mitigating circumstances alone will not negate a showing of intent or thereby excuse a ‘knowing violation,’ [they] may, however, serve as some indication of an employee’s state of mind, and may aid the fact finder in determining whether a ‘knowing violation’ has occurred.” 423 Mass. at 815, 672 N.E.2d at 112. Furthermore, Still points out that “[t]he presence of mitigating circumstances may also be applicable in determining whether the violated rule was reasonable as applied.” 423 Mass. at 815, n.11; 672 N.E.2d at 113, n. 11. In line with Still, the Board held that an employer did not meet its burden of establishing an employee’s knowing violation of an employee handbook rule where the handbook was in English, the claimant could not read English, and the employer did not have the handbook translated for the employee. BR-123671 (2/26/13).
AH c. 8, § 1C sets out a detailed analytical framework for rule-violation cases. While the term “state of mind” is not used, it is clear from the emphasis on “conscious awareness”—both of the act and of the rule violation—that state of mind is a critical element.