Labor Law

Editor:
Bryan P. Cavanaugh, Esquire

An employee must deliberately and purposefully disregard an employer’s attendance policy in order to be disqualified for unemployment benefits. Poor judgment does not rise to the level of misconduct connected with work. Welsh v. Mentor Management, Inc., et al., No. 96785 (Mo. App. E.D., January 24, 2012), Dowd, J.

Welsh’s supervisor told Welsh on June 21, 2010, that he needed to communicate with his supervisor before submitting emails to others, especially when it effects a change to existing program processes. On July 2, 2012, Welsh sent an email to the staff, and his supervisor again told him it was inappropriate to send emails to the entire staff. A peer audit was planned for October 28 or 29, 2012. On October 25, 2012, Welsh again sent an email to the entire staff suggesting the audit be a self-audit instead of a peer audit. Welsh’s supervisor told him right away the audit would be a peer audit. That same day, Welsh sent another email to the entire staff expressing concerns about the peer audit. Welsh’s employment was terminated on October 27, 2012 for violating his supervisor’s directive not to send email to the entire staff without discussing it with the supervisor first.

Welsh filed for unemployment benefits. The division found Welsh was disqualified from receiving benefits because she was discharged for misconduct connected with work. The appeals tribunal reversed, finding Welsh’s conduct amount to poor judgment and inadvertence and did not rise to the level of willful misconduct. The commission reversed, finding Welsh was discharged for misconduct connected with work because he deliberately violated work rules.

Held: Reversed and remanded.
The court of appeals was bound by the commission’s factual findings if they were supported by sufficient evidence. The employer bears the burden of proving misconduct.

To disqualify a claimant for misconduct connected with work requires a showing that the claimant deliberately or purposefully violated the employer’s rules or standards. Here, the facts did not support a showing of willful or intentional misconduct. A claimant must be aware of and knowingly or consciously violate an employer’s rule. Welsh testified he was trying to be helpful. This amounts at most to poor judgment. Therefore, the commission’s determination that Welsh committed misconduct connected with work was not supported by sufficient competent evidence.


Employee did not voluntarily quit work for good cause attributable to work when his driver’s license was suspended. Lentz v. Home Security of America, et al., No. 96919 (Mo. App. E.D., February 21, 2012), Sullivan, J.

Lentz worked as a master plumber for Home Security from June 2007 until December 3, 2010, when he was discharged for not maintaining a valid driver’s license. On November 19, 2010, Home Security told Lentz his driver’s license had been suspended, and Lentz began the process of applying for reinstatement. Home Security loaned Lentz the fee to attend a class required for reinstatement. During the time Lentz could not drive the company car, he worked by pulling permits required for jobs and serving as the second person on some jobs. The reinstatement class was supposed to end on November 24, 2010, but after receiving his evaluation, Lentz was required to attend a four-week class, and his reinstatement was pushed back to January 4, 2011. Home Security discharged Lentz on December 3, 2010.

Lentz filed for unemployment benefits. The deputy concluded Lentz voluntarily quit without good cause attributable to the work or employer. The appeals tribunal affirmed. The commission affirmed by a 2-1 vote.

Held: Reversed and remanded for reinstatement of benefits.
Lentz maintained the commission erred in denying him unemployment benefits because there was not sufficient evidence in the record to warrant its finding that he voluntarily quit his job. The court of appeals stated it would affirm the commission’s award if there is sufficient competent and substantial evidence to support that award. The determination whether an employee quit is a factual determination, which the court will affirm “if it is supported by competent and substantial evidence on the record as a whole.”  However, the court will review de novo “whether the facts found by the commission can, as a matter of law, be considered to constitute a voluntary departure from employment.”

Disqualifying provisions are construed narrowly. Unemployment benefits will be denied if the commission finds the claimant quit without good cause.

The court found the commission’s factual finding that Lentz quit was against the weight of the evidence. Additionally, the court found the factual findings of the commission cannot as a matter of law be considered to constitute a voluntary quit. The commission relied on the Board of Education case in which a teacher failed to obtain a permanent teaching certification and the school discharged her. The court in that case deemed the teacher’s separation a voluntary quit. Here, unlike that teacher, Lentz was not prohibited by law from working as a master plumber for Home Security without a driver’s license. In fact, he continued to work by pulling permits and serving as a second person on jobs when needed. Home Security did not discharge Lentz because he lost his license per se; it discharged him because the reinstatement process was going to take 3 ½ weeks longer than initially thought. Therefore, Board of Education does not apply here. There is no evidence the separation was the result of Lentz’s own choice. Therefore, Home Security discharged Lentz, and Lentz is entitled to unemployment benefits.