Labor Law

Editor:
Bryan P. Cavanaugh, Esquire

Former employee’s failure to complete a required incident report after a resident’s fall did not rise to the level of misconduct connected with work because there was no evidence she knew it was required. Bolden v. Cura, Inc., et al., No. 96276 (Mo. App. E.D., October 25, 2011), Richter, J.

Bolden worked as a caregiver in a nursing home.  A resident for whom she was caring fell.  Bolden did not help him up immediately and did not complete an incident report.  When her supervisor learned of the incident and Bolden’s failure to complete an incident report, she discharged Bolden.  The deputy and the appeals tribunal disqualified Bolden from receiving unemployment benefits because they concluded she was discharged for misconduct connected with work.  The Commission affirmed this conclusion.

Held: Reversed and remanded for a new hearing
“Misconduct connected with work” means the employee “willfully violated the rules or standards of the employer and that his actions were not simply the result of poor workmanship, lack of judgment, or an inability to do the job.”  There was evidence that the employer required an incident report for this type of situation and provided training on it.  But there was no specific evidence that Bolden knew about that requirement and willfully chose not to complete the incident report.  Therefore, the record did not support the inference of misconduct connected with work.  Rather, Bolden’s failure to complete an incident reported constituted neglect or a mistake.  Accordingly, the record did not support the finding of misconduct connected with work.


Former employee’s leaving work early did not constitute misconduct connected with work because she obtained her supervisor’s approval before leaving work early. Brinker v. N & R of Jonesburg, Inc., et al., No. 96186 (Mo. App. E.D., October 25, 2011), Richter, J.

Brinker worked as a cook at a skilled nursing facility.  She left work early one day and was discharged for doing so.  Evidence in the record showed she had obtained her supervisor’s permission before leaving.  The deputy and the appeals tribunal disqualified Brinker from receiving unemployment benefits because they concluded she was discharged for misconduct connected with work.  The Commission affirmed this conclusion.

Held: Reversed and remanded.
Brinker had obtained her supervisor’s approval before leaving work early.  Therefore, her leaving work early did not constitute misconduct connected with work.  Brinker was awarded unemployment benefits.


Sleeping on the job constitutes misconduct connected with work. Randy Nickless v. Saint Gobain Containers, Inc. and Division of Employment Security, No. ED9614 (October 25, 2011), Romines, J.

Nickless worked in the warehouse as a drive loader for 29 years.  One day, the company’s H.R. Director found Nickless asleep in an inner office.  During an investigation of the incident, Nickless claimed he was not sleeping, but was allowing eyewash he had applied to his eyes after getting dust in them to soak.  Nickless was discharged eight days later as a result of the incident.

The deputy found Nickless was eligible for benefits, and the appeals tribunal found the same.  The Commission reversed, finding Nickless had been discharged for misconduct connected with work.

Held: Affirmed.
  The court of appeals addressed two questions: 1) Was Nickless sleeping on the job? and 2) If so, does sleeping on the job constitute misconduct connected with work?  The court found the evidence in the record conflicted as to whether Nickless was sleeping, but it deferred to the Commission’s credibility determination that Nickless was indeed sleeping.  As for the second question, the court explained that misconduct includes “a disregard of standards of behavior which the employer has the right to expect of his or her employee.”  It recognized no Missouri case has directly addressed this issue, but stated, with limited exceptions in which sleeping on the job is acceptable, “the idea that sleeping on the job is anything other than misconduct is absurd.”  Nickless was therefore disqualified from receiving benefits.