Unemployment Compensation: Disqualification - Discharged for Misconduct

Last Updated On: 4/23/2015 7:11:28 PM

View the Unemployment Compensation Toolkit for more information on Unemployment Compensation.

Can I draw benefits if I was fired?

That depends on why you were fired. There are three possibilities:

  • First, suppose there was no “Misconduct” on your part. You will get all your possible benefits.
    • Maybe you were laid off because the company wasn’t doing well. Maybe the company closed down, and everyone was terminated. Maybe the employer just decided he didn’t like you, and got rid of you even though you were doing the job okay. If you didn’t violate any rules, or commit “misconduct,” then you should not be disqualified.
  • Second, suppose you were fired for what the law calls “Simple Misconduct.” You will lose the first six weeks of benefits. After that, if you are still unemployed, you can start drawing the remaining 20 weeks of benefits. We’ll explain what Simple Misconduct is in the next Question.
  • Third, suppose you were fired for what the law calls “Gross Misconduct.” You will lose ALL benefits. You won’t be able to draw any unemployment payments until you have gone back to work somewhere for at least 30 days.

What is “simple misconduct”?

Simple Misconduct is sometimes broken down into three categories

  • Willful and deliberate violations of employer rules. These are things like coming to work late, missing work without excuse, failing to call in when you’re off sick, or failing to punch in on the time clock when you’re supposed to. In general, it’s not following some rule or policy that the company requires; or
  • Careless or negligent violations that happen so often that it’s as bad as “willful and deliberate violations; or
  • Intentional and substantial disregard of the employer’s interests or of the employees duties and obligations. This can be things like insulting the employer’s customers, or ignoring the customers, or ignoring work that is supposed to be part of your job.

The unemployment penalty for Simple Misconduct is that you lose the first six weeks of benefits. After six weeks, you can start drawing the remaining 20 weeks of unemployment compensation benefits.

If I get fired for making minor mistakes or accidents, will I be disqualified from six weeks of benefits for “simple misconduct”?

No. Minor mistakes and accidents do NOT count as “misconduct.” Also, not doing the job fast enough, or good enough, does NOT count as misconduct.

Simple Misconduct is defined as “willful and wanton disregard of an employer’s interests.” Those words “willful and wanton” are important. They mean that ordinary unintended mistakes are not “misconduct.”

Everybody makes mistakes. If the employer wants to fire you for making mistakes, it’s his business and he can do that. But that doesn’t mean you should be disqualified from unemployment benefits.

Suppose you’ve been given a written warning that you need to quit making mistakes, or work faster. The written warning doesn’t change the legal rules. Routine errors, or not doing the job as good as the employer wishes, is not “misconduct.” If you’re following the rules and trying to do the job to the best of your ability, then you should not be disqualified for Simple Misconduct

Suppose I violate the rules just one time, and get fired. Will I be disqualified for “simple misconduct”?

In general, one isolated incident of a violation is not enough to meet the definition of Misconduct. If you get fired for being late one time, the Simple Misconduct penalty usually will not be applied. Normally it takes "repeated" violations to amount to Simple Misconduct.

The exception is if the violation was particularly serious or even dangerous. Then only one incident may be enough.

What is “gross misconduct” that would disqualify me from all benefits?

A claimant who is fired for “Gross Misconduct” will be disqualified from ALL benefits, until she returns to “covered employment” for thirty (30) days. There are three categories of “Gross Misconduct.”

First of all, there are specific actions that automatically qualify as Gross Misconduct. These are really serious things, like the following:

  • Arson of employer premises or property
  • Theft of employer or co-worker property
  • Burglary or embezzlement of employer property;
  • Being under the influence of alcohol or controlled substances on the job;
  • Refusal to submit to random testing for alcohol or drugs, or trying to “beat the test” by manipulating the testing sample; or
  • Assaulting a co-worker or the boss;

Second, there’s a broad catch-all category for “any other Gross Misconduct.” There’s no definition here, but the conduct has to be as bad as assault, arson, burglary, theft, coming to work drunk, etc. There’s no real definition, but fortunately the unemployment system does not apply this “Other Gross Misconduct” penalty very often.

Third, there’s a Gross Misconduct penalty based on a “Prior Written Warning.” If ALL of the following things happen, you’ll lose all of your benefits for Gross Misconduct:

  • You commit some type of ordinary misconduct, like tardiness or absenteeism; AND
  • You get a written warning from the company that says if you do that misconduct again you “could” be fired; AND
  • You do the same thing again; AND
  • You’re fired for doing the same thing again.

When all of these things combine, then you will be disqualified from all benefits for Gross Misconduct. But if any of these required pieces are missing, then the Gross Misconduct penalty does not apply.

I got a written warning. Then I got fired. Does that mean I will be automatically disqualified for “gross misconduct by prior written warning”?

No, not necessarily. There are times when a previous written warning does not trigger the Gross Misconduct penalty of complete total disqualification. But in any case where there was a previous written warning, the unemployment agency will tend to apply the “Gross Misconduct Due To Prior Written Warning” penalty.

You will need to examine your situation carefully. If you feel the Gross Misconduct Due to Prior Written Warning penalty should not apply, you’ll need to carefully explain why.

Many employers use written warnings all the time. They know that written warnings might mean that you won’t get benefits. And if you don’t get benefits, the employer doesn’t get charged higher fees for unemployment insurance.

But not all written warnings will lead to this Gross Misconduct penalty. There are four pieces that you need to look at very carefully. are important:

  1. Is The Warning Specific About What the Violation Was? The written warning has to be specific in describing the misconduct. Warnings that say “follow all rules” or “comply with policy” are too general. They don’t serve the purpose of telling you exactly what you did wrong, and what to avoid doing again. The warning notice has to be clear about what the violation was.
  2. Was The Original Behavior “Misconduct”? The behavior that caused the company to issue the written warning has to meet the definition of Misconduct. If it wasn’t Misconduct in the first place, it can’t be increased to Gross Misconduct.
    • For example, suppose the boss wrote you up for working too slow, for not meeting quota. That’s not “Misconduct” (unless you were deliberately and intentionally trying to screw things up). So that written warning cannot lead to a Gross Misconduct penalty.
  3. Did the Warning Say You “might” Be Fired If You Kept Doing It? The written warning has to tell you that you “could” or “might” be fired if you repeat the violation. Merely saying “further discipline” is not enough. The warning has to use some words that indicate loss of job is possible. Read your warning carefully. If it does not have any words to say that firing is a possible consequence, then it does not meet the requirements of the statute.
  4. Was the Same Misconduct Repeated? Suppose you’re written up for coming in tardy. A few months later you’re fired for not submitting a doctor’s statement for a sick leave. Those are two different things. The Prior Written Warning only covers Tardiness. You haven’t repeated the same violation. So there should be no Gross Misconduct penalty just because you had a write-up for something else.

View the Unemployment Compensation Toolkit for more information on Unemployment Compensation. 

This is general legal information. For guidance about your situation, talk to a lawyer.