A. Misconduct: An employee who is discharged for misconduct or gross misconduct is denied benefits. The fact that the employee’s acts might have been sufficient grounds to justify his or her discharge from employment does not mean that there were sufficient grounds to constitute statutory misconduct and thereby disqualify the employee from unemployment benefits.

The employee’s behavior must be so egregious that the unemployment is, in a sense, voluntary. This is to prevent employees from being denied benefits based on errors in judgment or incompetence. Under the Washington statute, RCW § 50.04.294, misconduct includes, but is not limited to:

• Willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee;
• Deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee; or
• Carelessness or negligence that causes or is likely to cause serious bodily harm to the employer or a fellow employee or that is of such degree or recurrence to show an intentional or substantial disregard of the employer’s interests.

Wanton or willful disregard is demonstrated through acts such as:

• Insubordination showing a deliberate, willful or purposeful refusal to follow the reasonable directions or instructions of the employer;
• Repeated inexcusable tardiness following warnings by the employer;
• Dishonesty related to employment, including but not limited to falsification of company records, theft, deliberate deception, or lying;
• Repeated and inexcusable absences, including absences for which the employee was able to give advance notice and failed to do so;
• Deliberate acts that are illegal, provoke violence or violation of laws, or violate the collective bargaining agreement. Does not include participation in lawful union activity;
• Violation of a rule if it is reasonable and if the claimant knew or should have known of the existence of the rule; or
• Violations of the law by the claimant while acting within the scope of employment that substantially affect the claimant’s job performance or that substantially harm the employer’s ability to do business.

Misconduct is not:

• Inefficiency, unsatisfactory conduct, or failure to perform well as the result of inability or incapacity;
• Inadvertence or ordinary negligence in isolated instances; or
• Good faith errors in judgment or discretion.

An employee found to have committed misconduct is subsequently denied benefits for ten weeks following termination and until the claimant has earned ten times the suspended weekly benefit amount in covered employment. RCW § 50.04.294.

Employees discharged for commission of a felony or gross misconduct lose wage credits for that job or six hundred and eighty (680) hours, whichever is greater.  RCW § 50.20.066.

The statute makes clear the fact that misconduct must be work-related. RCW §50.20.066.

In determining whether off-work actions are work related, our courts will determine whether there is a connection between the misconduct and the employment. The Washington State Supreme Court established the following test:

• The act has some connection with the employee’s work;
• Which resulted in harm to the employer;
• Violated behavior contracted for between the employer and the employee; and
• Was done with intent or knowledge the employer’s interests would suffer.

Nelson v. Employment Security Department, 98 Wn.2d 370 (1982). The “behavior contracted for” need not be a written agreement or formal contract.  It may take the form of reasonable rules or policies of the employer of which the employee is aware and expected to follow.

B. Gross Misconduct: Employees who commit gross misconduct are not eligible for benefits. Gross misconduct refers to the commission of a criminal act in connection with an individual’s work for which the individual has been convicted in a criminal court, or has admitted committing, or conduct connected with the individual’s work that demonstrates a flagrant and wanton disregard of and for the rights, title, or interest of the employer or a fellow employee. RCW § 50.04.294(4).

C. Misrepresentation: A claimant who knowingly makes a false statement or representation of a material fact to the Department of Employment Security in order to obtain UI benefits is disqualified from receipt of benefits for that week and for an additional twenty-six weeks beginning the Sunday of the week the determination is mailed or delivered. RCW § 50.20.070.

In this case, Sarah will likely receive benefits, John may receive benefits, and Craig will likely be denied benefits.

While Sarah may be incompetent at customer service and have poor interpersonal skills, her work performance does not reach the level of willful or wanton misconduct that would disqualify her from receiving unemployment benefits. She has not violated any specific work rules, engaged in deliberate violations of work standards, or committed gross misconduct or misrepresentation. She simply has a bad attitude and lacks the requisite skills to work for Jane. Although Jane was well within her right to terminate Sarah’s employment, her reasons for doing so do not rise to the level of statutory misconduct. Sarah will likely receive benefits.

John, on the other hand, may or may not receive benefits. John was terminated for repeated failure to arrive at work on time, a violation of Jane’s written attendance policy. Despite Jane’s repeated warnings, John was unable or unwilling to correct his behavior, and continued his pattern of tardiness. Whether an individual has engaged in conduct that renders the employee (or former employee) ineligible for benefits is a mixed question of law and fact. The Department could consider John’s repeated tardiness as “willful and wanton” conduct, resulting in benefit disqualification. On the other hand, if John has a reasonable excuse for his tardiness, or if the department finds that Jane did not provide John with sufficient warnings regarding the likelihood that he would be terminated for his repeated tardiness, the department may decide to grant John benefits.

Finally, given Craig’s egregious and dishonest behavior, the department should deny his benefit application. Craig’s theft of company property and subsequent falsification of inventory records squarely constitutes willful and wanton disregard of the employer’s rights. This behavior falls within the statutory parameters for disqualifying behavior, under RCW § 50.04.294, and Craig will not be eligible for unemployment benefits.