The employer bears the burden of demonstrating that it has uniformly enforced the work rule or policy—i.e., the employer must show that it treats all similarly situated employees subject to the rule or policy in a similar manner when they violate a rule or policy. The employee’s status within a progressive discipline system must also be considered. AH §§ 1C.b. 1D.
In New England Wooden Ware Corp. v. Commissioner of the Dep’t of Employment & Training, 61 Mass. App. Ct. 532, 811 N.E.2d 1042 (2004), the Appeals Court provided the first guidance on the question of uniform enforcement of a work rule. The Court found that the claimant who was fired for violating the employer’s written policy on unexcused absences, was entitled to UI where the policy included undefined terms and was unevenly applied in practice. The Court considered the employer’s failure to apply the policy uniformly to the claimant as evidence of non-uniform enforcement, even if it was to the claimant’s benefit. “Failure to enforce a policy uniformly, whether to the employee’s benefit or detriment, still influences the employee’s belief regarding the consequences of his actions.” 61 Mass. App. Ct. at 535. See also, Gold Medal Bakery, Inc. v. Commissioner of the Div. of Unemployment Assistance, 74 Mass. App. Ct. 1105, 903 N.E.2d 1145 (2009) (unreported) (holding that where an employer could not demonstrate that its attendance policies were uniformly enforced, an employee discharged for calling in sick in violation of attendance policies was eligible for UI). BR-0002 1180 82 (2/18/04) (Key) (finding that by waiting until the claimant’s 5th attendance violation following a final warning of termination, the employer led the claimant to believe that his behavior was condoned, such that the claimant lacked the requisite state of mind to be disqualified).