Feagin v. Everett

Tom Glaze, Judge, dissenting. Although the majority purports to follow the rule adopted by the Washington Supreme Court in Nelson v. Department of Employment Security, 98 Wash.2d 370 , 655 P.2d 242 (1982), rev’g 31 Wash. App. 604 , 644 P.2d 145 , it simply fails to do so. If it had, the majority would have reversed this case.

In Nelson, the claimant pleaded guilty to a shoplifting charge, and she was subsequently discharged by her employer for misconduct. The Employment Security Agency denied claimant benefits, finding her actions constituted misconduct in connection with her work. The Washington Court of Appeals affirmed the Agency decision, but the Washington Supreme Court reversed. In brief, the Washington Supreme Court adopted a rule which requires employers to establish reasonable rules and regulations defining the conduct expected of its employees; such rules must circumscribe conduct which would go to the nexus of an employee’s work and would result in harm to an employer’s interest. In Nelson, the Court held that the claimant was entitled to unemployment benefits because the employer failed to provide any rules or regulations concerning a code of conduct expected of its employees. If, in the instant case, the majority were following the rule in Nelson, it would necessarily reverse this cause and direct that benefits be paid the claimant.

For the sake of clarity, my steadfast opinion is that an employer has a right to discharge an employee who admits to criminal conduct involving drugs. That, however, is not the issue in this case. The issue is whether the employee should be disqualified for unemployment benefits because of misconduct in connection with the work. As Judge Cooper points out in his dissent, Arkansas’ case law has, without exception, required on-the-job misconduct of an employee before he or she is disqualified from benefits. Certainly, if off-duty misconduct is used to disqualify an employee from receiving benefits, the case law uniformly requires the employer to inform the employee concerning the conduct he or she is expected to follow. Otherwise, no one can possibly predict the type off-duty misconduct that the Board or this Court will label as work-connected. For instance, does it include an employee found guilty of speeding when the violation occurred when he was off-duty? Would it make a difference if he were employed as a delivery man or truck driver as opposed to a store clerk? Regardless of the type of one’s employment, is misconduct always work-connected if an employee is guilty of a first DWI offense, even though the violation occurred when he was off-duty? If not, under what circumstances would it not be work-connected?

In adopting a rule that does not require the employer to informally or formally define the conduct expected of an employee, this Court is inviting unwarranted and unnecessary employer-employee disputes and appeals. I would reverse.