Employee DUII and Unemployment Benefits

The Oregon Court of Appeals recently held that an employee who was terminated because he could not show up for work was discharged for misconduct connected with work where the employee’s reason for not showing up was that he was in jail following a conviction for DUII and reckless driving.  Interestingly, the employee’s arrest did not occur during work hours or in connection with his job.  Nevertheless, the Court affirmed a denial of benefits. 

The Court’s decision was based on OAR 471-030-0038, which sets forth the rules regarding misconduct connected with work.  Section (3)(a) provides that “a willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee is misconduct. An act or series of actions that amount to a willful or wantonly negligent disregard of an employer’s interest is misconduct.”  Section (1)(c) explains: “As used in this rule, “wantonly negligent” means indifference to the consequences of an act or series of actions, or a failure to act or a series of failures to act, where the individual acting or failing to act is conscious of his or her conduct and knew or should have know that his or her conduct would probably result in a violation of the standards of behavior which an employer has the right to expect of an employee.”

Based on OAR 471-030-0038, the Court held that the employee was “discharged for misconduct because his conduct was wantonly negligent in that he was indifferent to the consequences of his decision to drink and drive, he was conscious of his conduct, and he should have known that his ‘conduct would probably result in a violation of the standards of behavior which an employer has the right to expect of an employee’ including the requirement that he remain available for work”.  http://www.publications.ojd.state.or.us/Publications/A148411.pdf

The Court did not discuss the question of whether the misconduct was “in connection with work.”  However, because the employee represented himself and neither the employer nor the Employment Department participated in the appeal, this argument may not have been made such that the Court could consider it as a basis to reverse the denial of benefits.

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