Worker misconduct rule change mulled> Proposal would affect unemployment payouts

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BANGOR — It will be harder for fired workers to receive unemployment insurance benefits because of a stricter definition of misconduct working its way through the Legislature.

Out is the old language that when implemented was considered fairly stern, said Gail Thayer, director of unemployment compensation with the state Department of Labor. In is a reworded general definition of misconduct plus a 14-point list of acts that make fired workers ineligible for benefits. Also added is a three-part section on acts that may not be the sole basis for firing.

The misconduct definition is part of the plan to revamp and make solvent the unemployment insurance fund, which received initial approval by the House on Wednesday. The bill requires further action in the House and Senate. Gov. Angus King is expected to sign the measure when it reaches his desk, said King spokesman Dennis Bailey. “It’s our bill, basically,” he said.

Thayer said a lapse in personal conduct at the workplace and a system that makes about 80 percent of all claimants eligible for benefits warrant the changes in the definition. Nationwide, 40 percent of all claimants are ineligible for unemployment benefits. In Maine, it’s 20 percent, Thayer said.

Under the new definition, Thayer said, the denial rate should increase to 33 percent to 38 percent. It should save the state and employers $2.4 million next year.

“It makes it easier for an employer to show this person didn’t do what they were told,” Thayer said.

Under the older definition, individuals who willfully refused to do the work expected or behaved outside the standards an employer has a right to expect were not eligible for benefits. In some cases, repeated acts of carelessness or intentional disregard of the employer’s interests also were grounds for denying benefits.

The newer definition lists misconduct as “a culpable breach of the employee’s duties or obligations to the employer, or a pattern of irresponsible behavior which, in either case, manifests a disregard for a material interest of the employer.” It outlines 14 acts that are “presumed” to be a disregard for the employer’s material interest. These acts include neglect to perform assigned duties, criminal activity, alcohol or drug use, and sleeping on the job.

An employee, however, cannot be fired solely because of an isolated error in judgment, a good-faith effort to perfom the duties, absenteeism because of illness, or actions to protect the employee from domestic violence.

Also, under the newer definition, a finding that an employee has not acted improperly cannot be used as evidence that the employer lacked justification in firing, Thayer said.

Peter Gore, a legislative analyst with the Maine Chamber and Business Alliance, which represents many of the state’s employers, said his organization welcomes the changes. “We helped craft the language,” he said. “That was a number one issue for many businesses.”

Proposed definition of employee misconduct

The following actions or omissions constitute employee misconduct under a bill approved by the House on Wednesday:

Refusal, knowing failure or recurring neglect to perform reasonable and proper duties assigned by the employer;

Unreasonable violation of rules that are reasonably imposed, communicated and equitably enforced;

Unreasonable violation of rules that should be inferred to exist from common knowledge or from the nature of the employment;

Failure to exercise due care for punctuality or attendance after warnings;

Providing false information on material issues relating to the employee’s eligibility to do the work or false information or dishonesty that may substantially jeopardize a material interest of the employer;

Intoxication while on duty or when reporting to work or unauthorized use of alcohol while on duty;

Using illegal drugs or being under the influence of such drugs while on duty or when reporting to work;

Unauthorized sleeping while on duty;

Insubordination or refusal without good cause to follow reasonable and proper instructions from the employer;

Abusive or assaultive behavior while on duty except as necessary for self-defense;

Destruction or theft of things valuable to the employer or another employee;

Substantially endangering the safety of the employer, co-workers, customers or members of the public while on duty;

Conviction of a crime in connection with the employment or a crime that reflects adversely on the employee’s qualifications to perform the work; or

Absence for more than two workdays due to incarceration for conviction of a crime.

“Misconduct” may not be found solely in the following:

An isolated error in judgment or a failure to perform satisfactorily when the employee has made a good-faith effort to perform the duties assigned;

Absenteeism caused by illness of the employee or an immediate family member if the employee made reasonable efforts to give notice of the absence and to comply with the employer’s notification rules and policies; or

Actions taken by the employee that were necessary to protect the employee or an immediate family member from domestic violence if the employee made all reasonable efforts to preserve the employment.

SOURCE — The state Department of Labor, as outlined in LD 1970.