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Unemployment: What’s Misconduct?

Posted by Frank Steinberg | Oct 04, 2006 | 0 Comments

Under New Jersey law, as in most states, ex-employees may be ineligible for unemployment benefits if they left the job due to their own “misconduct.” Courts have to make some interesting calls on what conduct is misconduct.

In Patrick Cudahy Inc. v. LIRC, the Wisconsin Supreme Court recently confronted the question of whether off-duty drinking could be a kind work related misconduct under an unemployment statute. The court held that an employee's violation of a “last chance agreement” under a corporate substance abuse policy constituted misconduct and disqualified the employee from benefits. The twist to this case? The employee admitted to drinking, but only on his own time, not at work. However, since the last chance agreement prohibited the employee from any drinking at all, the court found that off-duty drinking violated the agreement and constituted misconduct. Therefore, the employee could not collect benefits.

An older case from New Jersey applied the same principle but, in a different situation, reached a different result. In Demech v. Board of Review the court considered the application for unemployment benefits of a butcher who was terminated for alleged misconduct. Her offense? Throwing a roast at a co-worker.

But as we said, the result was different than in the Wisconsin case. The butcher had a good reason for throwing the roast. Her target had subjected her to a continuing course of sexually harassing comments that apparently were so graphic that the court barely even hinted at their content in its opinion. The butcher lost her temper and chucked the roast at the offender, but did nothing else. Finding the incident to be an isolated, unusual, and provoked occurrence, the court held that she had not engaged in misconduct and was entitled to collect benefits.

So even seemingly routine unemployment cases are not always easy to predict.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...


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