Misconduct: An unemployment case analysis

Misconduct: An unemployment case analysis https://wahospitality.org/wp-content/uploads/2015/12/red-card.jpg

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Background

The claimant was discharged from her employment as a bartender due to a customer complaint. The claimant was allowed benefits upon a finding that she was discharged, but not for misconduct connected with the work. The employer appealed, and a hearing was scheduled before an administrative law judge.

At the Hearing
The Employer’s Evidence: The employer received a complaint from a customer that the claimant had been inattentive and rude, and had refused service. When questioned about the complaint, the claimant admitted that she had refused to serve the customer’s party a round of drinks because it was close to closing time, and she believed the customers may have been intoxicated. The employer’s policy, which the claimant had received at hire, provided that employees who believed that a customer was too intoxicated to serve was to report the customer to the manager. The manager would make the decision regarding whether to continue service.
The Claimant’s Evidence: The claimant testified that she was not rude or inattentive as described by the customer. The claimant testified that she did refuse to serve the customers a round of drinks because it was near closing time and she was worried about their intoxication level. She indicated that her thirteen years of service as a bartender should have been taken into account because she was capable of determining the intoxication level of the guests.

The Hearing Decision
The Administrative Law Judge found that the claimant’s discharge was for misconduct connected with the work, and she was disqualified from benefits. The claimant had been given the employer’s policy at hire, which provided that only a manager may determine that a customer was too intoxicated to serve. The claimant’s failure to serve the customers was a willful disregard of the employer’s interests and constituted misconduct connected with the work. The claimant appealed, arguing that the employer failed to prove she was rude, and her experience should have been taken into consideration regarding her evaluation of the guests’ intoxication level.

The Board of Review Decision:
The Board of Review agreed with the Administrative Law Judge. Though there was no first-hand testimony regarding the customer’s complaint that the claimant was rude and inattentive, the claimant’s admission (that she had refused to serve the guests despite the employer’s policy providing that a manager was to be contacted) was sufficient proof to support the decision of the ALJ. The claimant willfully violated an employer policy of which she had been made aware. The claimant remained disqualified.

Takeaways:
1. It is possible to prove misconduct in a case in which a claimant was discharged due to customer complaints. In this case, the employer did not call the customer to testify in the hearing, which is very common, as most employers do not wish to inconvenience their customers. The employer was able to provide testimony from the person to whom the claimant admitted refusing to serve the customers the drinks. It is always advisable to discuss an incident with an employee prior to discharge. Any admissions made by the claimant at that time are admissible and are considered to be valuable evidence at hearing.

2. In some states, a single incident can result in a finding of misconduct if the claimant’s actions are a deliberate violation of a policy. In some states, the result in this case would have been different – a pattern of behavior must be established for a finding of misconduct unless the event is particularly severe. Please discuss similar types of cases with your unemployment consultants to determine if your state’s laws tend to require that the claimant has established a pattern of disregarding the employer’s policies prior to discharge. It may be required that the claimant had been warned about similar behavior before a disqualification can be imposed.

Please remember: Unemployment Laws vary from state to state. The result in this case might be different from a case in your state.
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