Feagin v. Everett

James R. Cooper, Judge, dissenting. While I agree with the analysis of the majority in regard to the appellant’s actions and their nexus with her work, and with the analysis of the potential harm to her employer’s interests, I cannot agree that her conduct violated a code of behavior which her employer had a right to expect. The majority has cited no case which goes as far as this one does, nor have I found one. In Grimbel v. Brown, 247 La. 376 , 171 So.2d 653 , cert. denied, 382 U.S. 861 (1965), the claimant was a truck driver who was unable to perform his job because he had lost his driver’s license. Johnson v. Board of Commissioners of the Port of New Orleans, 348 So.2d 1289 (La. App. 1977), involved a policeman’s violation of a specific rule promulgated by his employer. In O’Neal v. Employment Security Agency, 89 Idaho 313 , 404 P.2d 600 (1965), the employee violated a specific rule promulgated by his employer which forbade “infamous, dishonest, immoral or notoriously disgraceful conduct”. The employee had been charged with a felony involving immorality. South Central Bell Telephone Co. v. Sumrall, 414 So.2d 876 (La. App. 1982), involved an employee who was discharged for violation of a company rule which prohibited the possession, sale, or use of controlled substances while on- or off-duty. The court held that such a rule was reasonable in light of the function of public utilities and that the employee’s knowing violation of the company rule constituted misconduct. Likewise, in Employment Security Board of Maryland v. Lecates, 218 Md. 202 , 145 A.2d 840 (1958), the unauthorized use of a company truck without an operator’s license and the failure to report the subsequent accident was held to be misconduct.

In Gregory v. Anderson, 14 Wis. 2d 130 , 109 N.W.2d 675 (1961), the Wisconsin Supreme Court found misconduct in connection with the work where off-duty drinking was involved. This violated not only a rule imposed by the employer, but a specific, special agreement which had been signed by the employee and which was made a part of the employment contract. Texas Employment Commission v. Ryan, 481 S.W.2d 172 (Tex. Civ. App. 1972), involved a reduction in unemployment compensation benefits because a worker had removed his employer’s oxygen bottle from the company premises and personally used part of the contents, in violation of the employer’s rule. Cadden v. Unemployment Compensation Board of Review, 195 Pa. Super. 159 , 169 A.2d 334 (1961), involved a state employee who was charged with speeding in a state vehicle and who was discharged for removing a state vehicle from his district, in violation of departmental regulations. Budzanoski v. District Unemployment Compensation Board, 326 A.2d 243 (D.C. 1974); does not really seem to involve off-duty misconduct, but rather the question of whether the claimant had been discharged from his “most recent” work for misconduct in connection with the work. Weaver v. Wallace, 565 S.W.2d 867 (Tenn. 1978), the last case cited by the majority for the proposition that off-duty activities can constitute misconduct in connection with the work, deserves more attention. Weaver was employed by the United States government as a forklift operator. He was discharged because of convictions for assault and battery, carrying a dangerous weapon, drunkenness, and possession of marijuana. Because the first three convictions predated his employment, the Tennessee Supreme Court held that, under the circumstances, those convictions could not be a valid basis for denial of unemployment compensation benefits. Therefore, the question presented was whether the claimant’s arrest and conviction for possession of marijuana and his suspended sentence amounted to misconduct in connection with the work. The court noted that “. . . an essential element of ‘misconduct connected with the work’ is a breach of duty owed to the employer, as distinguished from society in general.” Further, the court stated:

Unless the employee’s wrongdoing violates a duty owed to the employer, it cannot amount to that ‘misconduct connected with the work’ which serves to disqualify him to receive unemployment insurance benefits, although it may fully justify the employer in discharging him.

The court found that the claimant’s possession of marijuana, and his subsequent conviction, did not violate any duty owed to the employer.

In all these cases where benefits were denied, there was either a violation of a known company rule or a misuse of the employer’s property. None of these cases stand for the proposition that off-duty misconduct which neither involves company policy nor the violation of an employer’s specific rule constitutes misconduct in connection with the work.

Giese v. Employment Division, 27 Or. App. 929 , 557 P.2d 1354 (1976), involved a tenured French professor who was indicted, tried, and convicted of conspiring to destroy United States government buildings. In holding that he was not disqualified from receiving unemployment compensation benefits, the court stated:

... even though the employer may be amply j ustified in dismissing the employee as is the case here, that justification is not always grounds for denying unemployment compensation benefits to the dismissed worker.

In analyzing the nature of the misconduct and its connection with the work, the court found that the alleged conduct was certainly serious enough to constitute misconduct. However, the court stated:

[i] t was not, however, shown to be connected with claimant’s work; rather it was conduct off the working premises and outside the course and scope of claimant’s employment. We conclude that the phrase “connected with his work” was added to our statute by the legislature to draw a distinction between misconduct while off-duty and misconduct in the course and scope of employment.

Although the majority opinion purports to adopt the rule applied by the Washington Supreme Court in Nelson v. Department of Employment Security, 98 Wash.2d 370 , 655 P.2d 242 (1982), I find the majority opinion directly in line with the Washington Court of Appeals decision in Nelson v. Employment Security Department, 31 Wash. App. 621 , 644 P.2d 145 (1982). The court of appeals decision allowed a finding of misconduct where the conduct was violative of some code of conduct impliedly contracted for between the employer and the employee. The notion of an implied contract as to conduct was specifically rejected by the Washington Supreme Court, and I think that decision was sound. In modifying the decision of the court of appeals, the Washington Supreme Court stated:

... we adopt the rule developed by the Court of Appeals in Nelson v. Department of Empl. Sec., supra, with one change. The Court of Appeals required the employer to demonstrate conduct "violative of some code of behavior impliedly contracted between employer and employee”. (Italics ours.) We believe to insert the word “impliedly” in the test makes it far too broad. If, as alleged here, certain conduct would go to the nexus of the employee’s work and would result in harm to an employer’s interest, it is reasonable to require this conduct must be the subject of a contractual agreement between employer and employee. This agreement need not be a formal written contract between employer and employee and may be reasonable rules and regulations of the employer of which the employee has knowledge and is expected to follow. See Note, Unemployment Compensation — Misconduct — Disqualification for Violation of an Off-Duty Regulation, 1962 Wis. L. Rev. 892 .

The rule in Arkansas, however, has not heretofore required a specific contract as to behavior, but has allowed “misconduct” to be found where the employee’s actions constitute “... a disregard of the standard of behavior which the employer has a right to expect of his employees”. Stagecoach Motel v. Krause, 267 Ark. 1093 , 593 S.W.2d 495 (Ark. App. 1980). The application of that rule has been to cases involving on-the-job “misconduct”, or “misconduct” based on a failure to report for work, rather than off-duty actions allegedly constituting “misconduct”. See Jeffreys v. Everett, 6 Ark. App. 265 , 640 S.W.2d 465 (1982) (tardiness and absenteeism); Hamby v. Everett, 4 Ark. App. 52 , 627 S.W.2d 266 (1982) (misuse of company property); Brewer v. Everett, 3 Ark. App. 59 , 621 S.W.2d 883 (1981) (ordinary on-the-job negligence held not misconduct); Arlington Hotel v. Employment Security Division, 3 Ark. App. 281 , 625 S.W.2d 551 (1981) (violation of employer’s rules on-the-job); Hodges v. Everett, 2 Ark. App. 125 , 617 S.W.2d 29 (1981) (fighting on-the-job); Reynolds v. Daniels, 1 Ark. App. 262 , 614 S.W.2d 525 (1981) (profanity directed toward supervisor); Nibco, Inc. v. Metcalf, 1 Ark. App. 114 , 613 S.W.2d 612 (1981) (failure to communicate medical status to employer); Weavers v. Daniels, 1 Ark. App. 55 , 613 S.W.2d 108 (1981) (absences and intoxication on-the-job after warnings); Victor Industries Corp. v. Daniels, 1 Ark. App. 6 , 611 S.W.2d 794 (1981) (excessive absences).

I am at a total loss to understand how the majority can say that “there is substantial evidence in the record that appellant had both notice and knowledge that her involvement with an illegal substance was a violation of the standards expected of her as a teacher, guide and counselor to her students and as a representative of the Flippin School District.” Not only is there no substantial evidence to support such a conclusion, there is no evidence at all which justifies such a statement. It is true that the policy manual provided general guidelines as to a teacher’s duties, and listed various grounds for dismissal, but the right to discharge Ms. Feagin is not at issue in this case and never has been.

I am also troubled by that portion of the majority opinion which deals with the high standards required of teachers. The majority opinion concludes that non-association with controlled substances was “a reasonable regulation of the school board of which appellant had both knowledge and notice”. There exists no regulation concerning illegal drugs in the record of this case, and I cannot fathom how the appellant can be held to have been aware of something which never existed.

The real reason for the appellant’s discharge was the adverse public reaction to her arrest and the school board’s feeling that her effectiveness as a teacher had been irreparably damaged. Probably the board was right, but that finding has little to do with the question of whether her actions constituted misconduct in connection with the work. I wholeheartedly agree with Judge Flood’s statement in his dissenting opinion in Cadden v. Unemployment Compensation Board of Review, supra, where he said:

An employer may require that his employees be exemplary citizens off the job as well as on. In the absence of a contract providing otherwise, he may discharge them for failing to live up to this high standard. But a fall from grace does not disqualify the unfortunate sinner from receiving unemployment compensation upon his discharge unless his dereliction is connected with his work.

I would follow the Washington Supreme Court’s opinion in Nelson, supra, which the majority claims, but fails, to do and require more than an implied contract as to behavior while a worker is off-duty. An employer is free to adopt reasonable regulations concerning his employee’s off-duty activities, and I think that is what fundamental fairness and due process requires. A system wherein off-duty misconduct and its connection with the work is determined by changeable public opinion is really no system at all, and is unfair to both the employer and the employee.

I respectfully dissent.