Helpful to employers

Gavel to Gavel

published in The Journal Record | September 11, 2014

By Courtney Bru

The Oklahoma Legislature has again amended the Oklahoma Employment Security Act, which governs unemployment benefits. The act has been amended several times over recent years in several significant respects.

One recent employer-friendly amendment was the definition of misconduct. Prior to Nov. 1, 2013, the act did not define misconduct. Instead, the Oklahoma Employment Security Commission relied upon a vague standard established by Oklahoma courts. The standard often left employers uncertain whether an employee had engaged in misconduct. It made it extremely difficult for employers to disqualify a claimant, even one who clearly or repeatedly failed to follow workplace rules.

Since Nov. 1, 2013, the amended act has defined misconduct to include specifically identified acts or omissions. The list of examples provided is not exclusive, and other similar behavior can qualify as misconduct.

Beginning on Nov. 1, the act will continue to define specific behaviors as misconduct, including any material or substantial breach of the employee’s job duties or responsibilities or obligations, unapproved or excessive absenteeism or tardiness, dishonesty, wrongdoing, violation of a law or violation of a workplace policy or rule enacted to ensure orderly and proper job performance or for the safety of self or others.

However, unlike the current version of the act, this revised list will be exclusive.

While this may restrict employers in their ability to allege and prove misconduct, the amended act will also include a new provision providing that: “Any misconduct violation … shall not require a prior warning from the employer. As long as the employee knew, or should have reasonably known, that a rule or policy of the employer was violated, the employee shall not be eligible for benefits.”

The OESC has a long-standing practice of making an employer prove it warned an employee that she could lose her job for specific behavior before it will disqualify that employee on the basis of misconduct. This new provision should eliminate this practice.

Two additional amendments will become effective on Nov. 1, both of which should prove helpful to employers. First, the OESC will now allow untimely objections to claims for unemployment benefits for good cause shown. Second, the OESC will reconsider benefit determinations where an employee receives reimbursed pay or back pay under circumstances that would reduce the amount of benefits drawn.

This article appeared in the September 11, 2014, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.