What is Misconduct and What Does it Look Like?
You may not be able to get unemployment benefits in Oklahoma if you are fired for misconduct. If an employee is discharged for misconduct, the employer has the burden to prove that the employee engaged in misconduct. Misconduct is defined as:
- an intentional act or omission which constitutes a material or substantive breach of the employee’s job duties, responsibilities or obligations under the employee’s employment contract;
- unapproved or excessive tardiness or absenteeism;
- indifference to, breach or neglect of duties resulting in a material or substantial breach of an employee’s duties or responsibilities;
- acts or omissions that jeopardize others or their property;
- violation of the law; or
- rule or policy violation put in place to ensure the safety of others or proper job performance. OESC § 2-406; Okla. Stat. tit. 40 § 2-406.
An employer is not required to give an employee any warning that their actions constitute misconduct. As long as the employee has either actual knowledge or reasonably should have known that they were violating a work rule or policy, benefits will be denied. In addition, the failure to meet state or federal applicable civil, criminal or professional standards of the employee’s profession creates a rebuttable presumption of misconduct.
Benefits were allowed in a case in which the employee did not include some information on her work application regarding a prior employer due to a lack of room on the application. The information was submitted to the employer on the employee’s resume. The employer knew about her prior employment. There was no intent to deceive proven. (15 AT 06640 BR)
Benefits were denied in a case in which the employee was aware that he was required to get CLEET certification within six months of his hiring date. He failed to do so. The employer gave him an extension, but even after two years had passed, the employee still had not gotten the certification. The employer’s extension did not erase nor remove the employee’s initial duty to obtain the certification. Misconduct was shown. (15 AT 11425 BR)
But note that in a similar case, benefits were allowed. In this case, the employee was required to obtain a commercial driver’s license as part of his job. He took the test four times within a five-month period, but was unable to pass the test. He was discharged after five months on the job. Misconduct was not shown. (16 AT 08213 BR)
In another case, the employee — a deputy sheriff — was denied benefits. He had signed a code of conduct in which he agreed to conduct himself in such a manner as to avoid charges and convictions, and it stated that he understood that he was to refrain from any behavior that could reflect negatively on his employer.
The employee was subsequently arrested on a DUI and discharged for misconduct. The Board held that the employee’s arrest reflected negatively on the sheriff’s office. Benefits were denied. (16 AT 03082 BR)
These cases show that a finding on a charge of misconduct may not be as clear-cut as you would initially believe. Small facts can make a big difference in these cases. And if you are seeking benefits after a work separation of any sort, but especially after one based on alleged misconduct, you should bring your case to a Tulsa employment law specialist. Only an experienced attorney can advise you.
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