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New definition of ‘misconduct’ to assist employers in challenging unemployment benefit claims

published in McAfee & Taft EmployerLINC Update | May 31, 2013

By Michael Lauderdale

Oklahoma employees who file for unemployment after being terminated for cause will have significantly more difficulty qualifying for benefits due to an amended law which provides a statutory definition of “misconduct” for the first time and clarifies issues of burden of proof under the Oklahoma Employment Security Act.

Under the prior statute, while Oklahoma employers could challenge unemployment claims in cases where the employee was terminated for cause, proving such misconduct was difficult because the term “misconduct” was not defined in the Act. Accordingly, the courts crafted their own definition, which placed a high burden on the employer to meet in order to disqualify employees from receiving benefits even where the separation from employment was for cause.

The new law, which goes into effect November 1, 2013, makes a number of changes to the Act.

“Misconduct” defined

Under the new law, “misconduct” shall include, but not be limited to, the following:

  1. Unexplained absenteeism or tardiness;
  2. Willful or wanton indifference to or neglect of the duties required;
  3. Willful or wanton breach of any duty required by the employer;
  4. The mismanagement of a position of employment by action or inaction;
  5. Actions or omissions that place in jeopardy the health, life or property of self or others;
  6. Dishonesty;
  7. Wrongdoing;
  8. Violation of a law; or
  9. A violation of a policy or rule adopted to ensure orderly work or the safety of self or others.

While “misconduct” is not limited to these nine factors, it is likely that a reason for separation of employment will fall within one of these categories.

Sticking to your story

Under the new law, the Oklahoma Employment Security Commission (OESC) is also now required to notify a claimant of the new definition of misconduct when a claim for benefits is filed. The claimant is further required to certify that the answers given in seeking benefits are true and correct and that no information has been intentionally withheld or misrepresented in an attempt to receive benefits. In situations where an employer contests benefits, there will now be evidence which can be used in determining eligibility, where previously a claimant was not required to make any affirmations as to the information being provided. Not surprisingly, the lack of any verifiable testimony often allowed a claimant to change his/her story or add to it throughout the course of a proceeding challenging benefits.

Burden of proof

Another significant change to the Act is that it clarifies issues of burden of proof. While the employer has the burden to prove that the employee engaged in misconduct, the burden of proof is satisfied by the employer, or its designated representative, providing a signed affidavit, or presenting such other evidence which properly demonstrates misconduct. Once this burden is met, the burden then shifts to the discharged employee to prove that the facts are inaccurate or that the facts as stated do not constitute misconduct.

Employers should plan on providing a comprehensive affidavit when it contests a claim for benefits. Great care should be taken in making sure EVERYTHING in the affidavit is true and correct. While the OESC may not require the submission of an affidavit, we believe that this is the best course of conduct. Similar to the employee, the employer is now stating under oath the facts presented are true and correct.

Next steps for employers

While the new statute provides some much-needed clarification on a number of issues, it is unknown at this time exactly how the OESC will administer this legislative directive or what the long-term impact will be on employers and claimants. The tools are in place for employers to successfully contest more claims for unemployment benefits, but they need to be diligent in how they craft their workplace policies, including notifying employees of such policies and, as always, properly documenting employee misconduct.

To ensure you’re in the best possible position to prove “misconduct”, we recommend you consult with your legal counsel to review (and possibly modify) your existing policies to conform with the Act’s new language.