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Unemployment Benefits Can Be Denied for Criminal Conduct

by merlin on August 1st, 2014
  • Sumo

DISCLAIMER:

I do not take ANY labor law cases.  Ever.  However, I represent a few different corporations, and have to be aware of some of the basic rules, and circumstances have required that I act quickly to evaluate this particular situation.  With that disclaimer in mind, the following represents the position of the Georgia Courts in the existing body of law on disqualifications for unemployment compensation due to voluntary acts:

Section 34-8-194 of the Official Code of Georgia details what circumstances act as disqualifiers for unemployment compensation, listing them in general (the specific circumstances have been fleshed out by the cases that applied these rules):

  • An individual shall be disqualified for benefits:

    (1) For the week or fraction thereof in which the individual has filed an otherwise valid claim for benefits after such individual has left the most recent employer voluntarily without good cause in connection with the individual’s most recent work. Good cause shall be determined by the Commissioner according to the circumstances in the case; provided, however, that leaving an employer to accompany a spouse who has been reassigned from one military assignment to another shall be deemed to be for good cause; provided, however, that the employer’s account shall not be charged for any benefits paid out to the person who leaves to accompany a spouse reassigned from one military assignment to another. To requalify following a disqualification, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then becomes unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner’s determination the burden of proof of good work connected cause for voluntarily leaving such work shall be on the individual. Benefits shall not be denied under this paragraph, however, to an individual for separation from employment pursuant to a labor management contract or agreement or pursuant to an established employer plan, program, policy, layoff, or recall which permits the individual, because of lack of work, to accept a separation from employment;

    (2) (A) For the week or fraction thereof in which such individual has filed an otherwise valid claim for benefits after the individual has been discharged or suspended from work with the most recent employer for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case. To requalify following a disqualification, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then becomes unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner’s determination the burden of proof of just discharge or suspension for cause as set forth shall be on the employer and the presumption shall be with the employee; provided, however, that:

    (i) An individual shall secure employment and show to the satisfaction of the Commissioner that such individual has performed services in bona fide employment and earned insured wages equal to at least 12 times the weekly benefit amount of the claim and has lost that job through no fault on the part of such individual, if it is determined by the Commissioner that the individual has been discharged for cause by the most recent employer for one or more of the following reasons:

    (I) Intentional conduct on the premises of the employer or while on the job which results in a physical assault upon or bodily injury to the employer, fellow employees, customers, patients, bystanders, or the eventual consumer of products; or

    (II) Intentional conduct that results in the employee’s being discharged for, and limited to, the following: theft of property, goods, or money valued at $100.00 or less; and

    (ii) An individual shall secure employment and show to the satisfaction of the Commissioner that he or she has performed services in bona fide employment and earned insured wages equal to at least 16 times the weekly benefit amount of the claim if it is determined by the Commissioner that the individual has been discharged for cause by the most recent employer for one or more of the following reasons:

    (I) Intentional conduct by the employee which results in property loss or damages amounting to $2,000.00 or more; or

    (II) Intentional conduct that results in the employee’s being discharged for, and limited to, the following: theft of property, goods, or money valued at over $100.00, sabotage, or embezzlement.

    (B) An individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines:

    (i) The individual made a good faith effort to perform the duties for which hired but was simply unable to do so;

    (ii) The individual did not intentionally fail or consciously neglect to perform his or her job duties;

    (iii) The discharge occurred because of absenteeism and the absences were caused by illness of the claimant or a family member, unless the claimant has without justification failed to notify the employer or the absence for such illness which led to discharge followed a series of absences, the majority of which were attributable to fault on the part of the claimant in direct violation of the employer’s attendance policy and regarding which the claimant has been advised in writing, prior to any of the absences, that unemployment benefits may be denied due to such violations of the employer’s policy on attendance; provided, however, that no waiver of an employee’s rights under the federal Family and Medical Leave Act of 1993, as amended, or any other applicable state or federal law shall be construed under this division;

    (iv) The discharge occurred as a violation of the employer’s rule of which the claimant was not informed by having been made aware thereof by the employer or through common knowledge. Consistency of prior enforcement shall be taken into account as to the reasonableness or existence of the rule and such rule must be lawful and reasonably related to the job environment and job performance; or

    (v) Except for activity requiring disqualification under paragraph (4) of this Code section, the employee was exercising a protected right to protest against wages, hours, working conditions, or job safety under the federal National Labor Relations Act or other laws.

    (C) For the week or fraction thereof in which such individual has filed an otherwise valid claim for benefits after the individual has been discharged or suspended for violation of the employer’s drug-free workplace policy as determined by the Commissioner according to the circumstances in the case. To requalify following a disqualification under this subparagraph, an individual must secure subsequent employment for which the individual earns insured wages equal to at least ten times the weekly benefit amount of the claim and then become unemployed through no fault on the part of the individual. Notwithstanding the foregoing, in the Commissioner’s determination the burden of proof of just discharge or suspension for cause as set forth in this subparagraph shall be on the employer and the presumption of eligibility shall be with the employee; provided, however, that in cases where a drug or alcohol test is utilized to prove a violation of the employer’s drug-free workplace policy:

    (i) The employer’s burden of proof of just discharge or suspension shall be presumed met if the individual fails a drug screening test which is required by terms of the employer’s drug-free workplace policy and said policy complies with the provisions of Article 11 of Chapter 9 of this title, other substantially equivalent or more stringent standards established by federal law or regulations, or with rules and regulations prescribed by the Commissioner;

    (ii) The laboratory test results, including but not limited to, documentation of the chain of custody, methodology, and the accuracy of the drug screening test shall be admissible and self-authenticating in an administrative hearing conducted by the Commissioner with respect to a disputed claim for unemployment benefits under this chapter, and such evidence shall create a rebuttable presumption that the individual violated the employer’s drug-free workplace policy; provided, however, that any other evidence relating to the issue of eligibility and the provisions of this subparagraph may be received in person or by telecommunications at the hearing; and

    (iii) Laboratory test results submitted by the individual, including but not limited to documentation of the chain of custody, methodology, and the accuracy of the drug screening test shall be admissible and self-authenticating in an administrative hearing conducted by the Commissioner with respect to a disputed claim for unemployment benefits under this chapter;

    (3) (A) If, after the claimant has filed an otherwise valid claim for benefits, the claimant has failed without good cause either to apply for available, suitable work when so directed by an employment office or the Commissioner or to accept suitable work when offered to the claimant by any employer. Such disqualification shall continue until he or she has secured subsequent employment for which the individual has earned insured wages equal to at least ten times the weekly benefit amount of the claim and has lost that job through no fault on the part of the individual.

    (B) In determining whether or not any work is suitable for an individual, the Commissioner shall consider the degree of risk involved to his or her health, safety, and morals; his or her physical fitness and prior training; his or her experience and prior earnings; his or her length of unemployment and prospects for securing local work in his or her customary occupation; and the distance of the available work from his or her residence. The length of unemployment shall be given full consideration and, after an adjustment period, the claimant must accept work involving less competence and at a lower remuneration. If a claimant has received ten weeks of benefits during his or her current period of unemployment, no work otherwise suitable shall be considered unsuitable because of prior training, experience, prior earnings, or level of compensation, provided such compensation is equal to or exceeds 66 percent of the claimant’s highest calendar quarter base period earnings; provided, however, that such compensation must be equal to or greater than the minimum wage established by federal or state laws.

    (C) Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work:

    (i) If the position offered is vacant due directly to a strike, lockout, or other labor dispute;

    (ii) If the wages, hours, or other conditions of the work offered are less favorable to the individual than those prevailing for similar work in the locality; or

    (iii) If, as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization;

    (4) For any week with respect to which the Commissioner finds that his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he or she is or was last employed. If, in any case, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each such department shall, for the purposes of this paragraph, be deemed to be a separate factory, establishment, or other premises. This paragraph shall not apply if it is shown to the satisfaction of the Commissioner that:

    (A) He or she is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work;

    (B) He or she does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; or

    (C) A lockout has occurred following the expiration of the most recent working agreement without any offer of or refusal to continue that agreement during continued negotiations for a new agreement acceptable to employer and employee.

    When a stoppage of work due to a labor dispute ceases and operations are resumed at the factory, establishment, or other premises at which the employee is or was last employed but the employee has not been restored to such last employment, the employee’s disqualification for benefits under this paragraph shall be deemed to have ceased at such time as the Commissioner shall determine such stoppage of work to have ceased and such operations to have been resumed. Benefits shall not be paid for any week during which the employee is engaged in picketing or is a participant in a picket line at the factory, establishment, or other premises at which the employee is or was last employed even though the stoppage of work shall have ceased and operations have been resumed;

    (5) For any week with respect to which the employee is receiving or has received remuneration in the form of:

    (A) Wages in lieu of notice, terminal leave pay, severance pay, separation pay, or dismissal payments or wages by whatever name, regardless of whether the remuneration is voluntary or required by policy or contract; provided, however, such remuneration shall only affect entitlement if the remuneration for such week exceeds the individual’s weekly benefit amount. Remuneration for accrued but unused annual leave, vacation pay, sick leave, or payments from employer funded supplemental unemployment plans, pension plans, profit-sharing plans, deferred compensation, or stock bonus plans or seniority buyback plans shall not affect entitlement. In the case of lump sum payments or periodic payments which are less than the individual’s weekly wage, such payments shall be prorated by weeks on the basis of the most recent weekly wage of the individual for a standard work week; or

    (B) Compensation for temporary partial or temporary total disability under the workers’ compensation law of any state or under a similar law of the United States;

    (6) For any week with respect to which he or she has received or is seeking unemployment compensation under an unemployment compensation law of another state or of the United States; or

    (7) If while attending a training course as provided in Code Section 34-8-195, he or she voluntarily ceases attending such course without good cause. Such disqualification shall continue pursuant to the provisions of paragraph (1) of this Code section. However, if any individual is separated from training approved under Code Section 34-8-195 due to the individual’s own failure to abide by rules of the training facility, he or she shall be disqualified for benefits under the provisions of paragraph (2) of this Code section.

The applicability of this Code section on incarceration and problems due to legal trouble has been discussed fully in the volume of cases settling the issue.  The case below, Carter v. Caldwell, 151 Ga.App. 687 (Ct. App. 1979), points out the essence of the dispute between an employee and an employer when it comes to this particular cause of job-loss: the voluntary nature of it (see paragraph 2, above):

        Kenneth G. Levin, Atlanta, for appellant.

        Arthur K. Bolton, Atty. Gen., George P. Shingler, Asst. Atty. Gen., for appellee.

       UNDERWOOD, Judge.

        This is a case of first impression in Georgia. The appellant Carter was dismissed from his employment for failure to be present at work. His absence was caused by his incarceration following conviction of a crime which took place during nonworking hours and which was unrelated to his employment. Carter filed for unemployment compensation, but was found disqualified for the benefits by an appeals referee. This decision was affirmed by a board of review and the superior court.

        1. The issue we must decide is whether an employee’s dismissal from a job for failure to be present at work disqualifies him from receiving unemployment compensation under Code § 54-610(b) when the reason for his absence is his incarceration for an offense unrelated to his employment. Code § 54-610(b) provides that “(a)n individual shall be disqualified for benefits . . . for failure to obey orders, rules or instructions or the failure to discharge the duties for which he was employed . . .” This court has held that there must be some fault chargeable to the employee in order to have a valid disqualification under this section. Smith v. Caldwell, 142 Ga.App. 130235 S.E.2d 547 (1977). In Smith, supra, a secretary was dismissed as a result of her lack of proficiency in carrying out her employer’s orders. We held that her inability was no fault of her own and that she should not be disqualified for unemployment compensation. In Ford Motor Co. v. Abercrombie, 207 Ga. 464, 467, 62 S.E.2d 209, 213 (1950) the Supreme Court observed that the intent of the legislature is “. . . to pay unemployment compensation during periods of unemployment to those workers whose unemployment is involuntary and is not the result of their own fault.” Carter’s claim is that his inability to report to work was totally involuntary and not the result of his own fault.

        While it is true in some cases that misconduct totally unrelated to an employee’s work will not be grounds for disqualification for unemployment benefits, 76 Am.Jur.2d 953, Unemployment Compensation § 57, the issue in this case is whether conduct leading to incarceration and the consequent inability to work is a valid basis for dismissal of an employee’s claim for unemployment compensation. The appellant has presented summaries of cases that appear to hold that inability to report to work due to incarceration should not be grounds for disqualification. While this may be the view in some jurisdictions, it is clear that other jurisdictions have taken a different view. See Grimble v. Brown, 247 La. 376171 So.2d 653 (1965). The appellant has presented with considerable persuasion his perception of the correct application of the statutory directives of the unemployment compensation program and the policy imperatives associated with that construction. However, we are not able to share his perception of the intention of the legislature and hold that where, as in the instant case, an employee engages in conduct which leads to his incarceration, and as a result of his incarceration he is dismissed from his employment, the denial to him of unemployment compensation is the correct interpretation of the statutory mandate of Code § 54-610(b).

        2. Enumerations 2 through 4 are without merit and involve essentially the same considerations present in Enumeration 1.

        3. Appellant’s fifth enumeration is that the trial judge on his own volition introduced into the proceeding the nature of the appellant’s criminal offense. It is not clear from the record whether this occurred as contended, but in any event it would be harmless error here since the nature of the offense had no bearing on the decision. It was the appellant’s inability to report for work due to his incarceration which disqualified him for unemployment compensation and not the nature of the offense.

        4. Appellant’s sixth enumeration of error is that the superior court should have considered U. S. Labor Department guidelines concerning unemployment compensation when ruling on the case. It has not been shown that such guidelines are controlling in questions involving state implementation of the unemployment compensation programs and no error appears.

        Judgment affirmed.

        McMURRAY, P. J., and BANKE, J., concur.

 

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