Discharge - Sections 8-1002,
8-1002.1, 8-1003 continued
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III. Aggravated Misconduct
In 1992, the legislature enacted Section 8-1002.1, which
created a new category of misconduct entitled "Aggravated
Misconduct." Aggravated misconduct was defined as "intentional
conduct by an employee in the workplace that results in:
(i) a physical assault upon or bodily injury to the employer,
fellow employees, subcontractors, invitees of the employer,
members of the public, or the ultimate consumer of the employer's
product or services; or (ii) property loss or damage to
the property of the employer, fellow employees, subcontractors,
invitees of the employer, members of the public, or the
ultimate consumer of the employer's product or services."
A disqualification for aggravated misconduct continued until
the claimant earned 20 times his weekly benefit amount in
covered employment. Additionally, wages earned from an employer
harmed by the claimant's aggravated misconduct were deleted
from the calculation of the claimant's weekly benefit amount.
In 1995, the legislature repealed Section 8-1002.1 and reenacted
it with amendments. The definition of aggravated misconduct
was changed to "behavior committed with actual malice
and deliberate disregard for the property, safety or life
of others that: (I) affects the employer, fellow employees,
subcontractors, invitees of the employer, members of the
public, or the ultimate consumer of the employer's product
or services; and (II) consists of either physical assault
or property loss or damage so serious that the penalties
of misconduct or gross misconduct are not sufficient."
A disqualification for aggravated misconduct continues
until the claimant is reemployed and earns 30 times his
weekly benefit amount in covered employment. Wages earned
by a claimant from a base period employer against whom
the claimant committed aggravated misconduct are no longer
deleted from the claimant's wage base for purposes of
determining the claimant's weekly benefit amount. The
amendment to Section 8-1002.1 applies to all new claims
filed on or after October 1, 1995.
The claimant repeatedly processed unauthorized transactions, converting
approximately $52,000.00 of the employer's funds to her
own personal account without explanation or justification
and spent approximately $42,000.00 of those funds. The
claimant's actions support a finding of aggravated misconduct.
Fauntleroy v. American Assoc. for Adv. Scien., 00089-BR-98 (1998).
A claimant ordered a customer of the employer to make three checks
payable to himself (the claimant) for the sale of employer's
property. The claimant cashed and converted one of the
checks to his own use. The Board found that such behavior
is sufficient to sustain a discharge for aggravated misconduct.
Smith v. Madison Warehouse Corp., 387-BR-01 (2001).
A claimant's mismanagement of employer funds lacked the requisite element
of "actual malice" to rise to the level of aggravated
misconduct. The "mismanagement of funds" was held to be
a "breach of duty and a wanton disregard of the standard
of behavior that the employer had a right to expect supporting
a finding of "gross misconduct". Phillips v. Community
Services of Maryland, Inc., 545-BR-01 (2001).
When a claimant sold a television off of the employer's truck
contrary to all employer rules and regulations, the Board
found the discharge to be for aggravated misconduct. The
Board ruled that the value of the property is not the
sole determining factor. Requisite "intent" existed when
the claimant sold the property belonging to another.
Edwards v. Thrift Stores of Washington, D.C. Inc., 01622-BR-96 (1996).
Where a claimant "without provocation slapped a co-employee
on both sides of his face and pushed co-employee into
a trash can, the claimant's actions constitute aggravated
misconduct. Yeager v. Trustee-Sheppard Pratt Hosp., 02782-BR-96 (1996).
The claimant, a licensed pharmacist, was discharged by the employer
for the theft of a controlled dangerous substance which
had been the property of the employer (a hospital). The
Board determined that the act was done with malice and
that the property loss was so serious that the penalties
of misconduct or gross misconduct were insufficient. A
penalty for a discharge for aggravated misconduct was
invoked. Kochhar v. Holy Cross Hospital of Silver
Spring, Inc., 00866-BR-97 (1997).
A claimant who was discharged for striking a supervisory co-worker
in the face was discharged for aggravated misconduct.
The Board determined that the act of the claimant was
done with malice. In reaching its conclusion, the Board
attached no merit to claimant's assertions that he was
not the aggressor in the situation and was provoked.
Morgan v. Washington Overhead Door, Inc., 01191-BR-97 (1997).
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IV. Connected with the Work
An employer must demonstrate not only that a claimant committed
misconduct, but also that the misconduct was "connected
with the work." In determining whether an employee's actions
are connected with the work, the following circumstances
should be considered:
1) Whether there was a breach of duty to the employer;
2) Whether the act occurred during the hours of employment;
3) Whether the act occurred on the employer's premises;
4) Whether the act occurred while the employee was engaged in his work; and
5) Whether the employee took advantage of the employment
relation in order to commit the act.
Employment Security Board v. LeCates, 218 Md. 202, 145 A.2d 840 (1958).
The Court in LeCates, supra, stated that "...the legislature
did not intend to limit misconduct 'connected with' the
employee's work to misconduct which occurred during the
hours of employment and on the employer's premises. If
it had, the language used would have undoubtedly expressed
that intent. Since no such limitation was indicated, it
is obvious the provisions of the statute were intended
to deny unemployment compensation to a claimant who was
discharged -- and hence unemployed -- because of misconduct
regardless of when or where it occurred so long as such
misconduct was in law connected with the employee's work."
The Court also stated that "the law writers generally agree that
a breach of duty to the employer, although not in itself
sufficient, is an essential element to make the act one
connected with the work."
In order to meet the "connected with the work" requirement, the
misconduct must be incident to the work or directly related
to the employment status. The mere fact that the misconduct
adversely affects the employer's interests is not enough.
The term "work" is not restricted to actual services an
employee is hired to perform, but it may properly comprehend
other obligations, such as the duty to obey proper orders,
or to refrain from absenteeism. There is a general duty
of loyalty to one's employer. Fino v. Maryland Employment
Security Board, 218 Md. 504, 147 A.2d 738 (1959).
Generally, conviction of a crime committed outside of work hours,
away from the employer's premises and not connected in
any other way with the employment is not considered to
be misconduct connected with the work. However, certain
types of employment, such as employment as a police officer,
have been found to give rise to a continuing duty to refrain
from criminal acts. A criminal act committed by a police
officer away from work is considered to be connected to
the employment. Correctional officers, security personnel,
fire fighters and certain other employees also have a
continuing duty to refrain from criminal activity away
from work, at least where the criminal activity is related
to their job responsibilities.
Misconduct that occurred before employment or after discharge is
not connected with the work.
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A. Breach of Duty |
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1. Police Officers
The claimant police officer, while off duty and on leave,
was involved in an accident on a shopping center parking
lot and failed to leave identifying information on the damaged
vehicle as required by Maryland law. The claimant made false
statements in reporting this incident to her superiors.
The claimant was tried and given probation before verdict
on the charge. The claimant was discharged. A police officer
has a continuing duty to her employer to refrain from committing
statutory violations which show moral turpitude. The commission
of such an act, even while off duty, is a deliberate and
willful disregard of standards of behavior which the employer
has a right to expect and constitutes gross misconduct.
Johnson v. Baltimore City Police Department, 952-BH-83.
The claimant was a police cadet. She was required to take a physical
that included a drug screening test. The claimant's urine
test showed that she tested positive for cocaine. As a
police cadet, the claimant has a continuing duty to the
employer to refrain from violation of criminal laws. Her
ingestion of cocaine, even if not done during work hours,
constituted a serious violation of this duty. This was
held to be gross misconduct. Handy v. Baltimore City
Police Department, 1059-BH-90.
2. Correctional Officers and Security Personnel
The claimant correctional officer was charged with possession
of narcotics and related paraphernalia. Although a correctional
officer may not have as compelling a duty to refrain from
criminal acts as a police officer, gross misconduct exists
where the claimant's actions are deliberate and willful
and are related by their very nature to the claimant's
job duties. Skelton v. Maryland House of Correction, 111-BR-84.
3. Fire Fighters
An off duty fire fighter's conviction for theft was a
breach of duty owed to his employer. Fire fighters have
access to homes in the course of their duties. The claimant
was discharged for gross misconduct. Willett v. Civil
Service Commission, 8-BH-87.
4. Other Employees
The claimant file clerk was discharged because he was
twice convicted of third-degree sexual offenses involving
illegal activity with minor children. The incidents leading
to the convictions did not occur during working hours,
on the employer's premises, or while the claimant was
engaged in work. The claimant was able to continue to
work with the suspended sentence, and the discharge was
not for absenteeism. While the claimant's actions were
misconduct, they were not connected with the employment,
therefore, no disqualification could be imposed. Hubatka
v. Department of Health and Human Services, 1-BH-83.
The claimant was employed as an employee relations counselor with duties
including counseling of employees with drug and alcohol
problems. Therefore, the claimant's use and smuggling
of marijuana, although occurring off duty and off the
employer's premises, constituted gross misconduct connected
with the work. Gaumnitz v. Social Security Administration, 937-BH-85.
The claimant worked in a clerical position inside the jail and had
daily contact with inmates. The claimant was arrested
for possession of heroin while off duty and received "probation
before judgment" for the criminal charge. The claimant
was discharged for gross misconduct. Although the claimant
held a clerical position, her daily contact with inmates
was sufficient to hold her to a duty to refrain from using
illegal drugs. Bailey v. Jail Board, 716-BR-89.
While negative comments about one's job conditions are generally not
considered misconduct, in this case, the claimant's comments
were a direct violation of his duty to his employer and
the residents he was there to counsel. He knew or should
have known that his remarks would severely undermine the
morale of the residents. The claimant was discharged for
gross misconduct. Fetty v. Changing Point, Inc., 918-BR-89.
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B. Off Duty Activity
At a company picnic in a public place, the claimant became
involved in a fight with another patron of the establishment
over that patron's use of inappropriate language in the
presence of the claimant's children. The claimant was discharged
for violating the employer's rule prohibiting fighting "on
company time and premises." The claimant was not in the
course of his employment at the time of the incident; rather,
he was in the course of a social activity with persons with
whom he happened to work. Therefore, the claimant's act
was not connected with the work and no disqualification
was appropriate. Hart v. Vista Chemical Company, 391-BH-85.
After work hours, the claimant accompanied the employer's truck driver,
knowing that this driver was drinking and even supplying
the driver with drinks. When four accidents resulted,
the claimant was discharged for encouraging the other
employee to violate the rules and for trying to cover
up the incident. The claimant was discharged for gross
misconduct. Thomas v. Turnbull Enterprises, Inc., 26-BH-88.
The employer told the claimant that other workers had said that he
was intoxicated and uncooperative on the job. The claimant
began angrily approaching coworkers, asking who had reported
him to the employer. This behavior culminated in a physical
assault on a coworker, but this took place after hours
and off the work premises. The assault was incident to
the work. Misconduct need not take place during the hours
of employment or on the work premises in order to be work-connected.
Stinson v. Towson Inn Restaurant Corporation, 1602-BR-93.
C. Criminal Activities and Convictions
The claimant school bus driver was arrested while off
duty and charged with possession of drug paraphernalia
and a controlled dangerous substance. The employer presented
documentary evidence in the form of an affidavit by a
police officer attesting to the claimant's possession
of a controlled dangerous substance. The claimant was
not present at the hearing, but the affidavit was sufficient
evidence upon which to conclude that the claimant did
in fact commit the act in question. Although the claimant
committed the act off duty, as a school bus driver, she
had a duty to refrain from using or possessing controlled
dangerous substances even while off duty. The claimant
was discharged for gross misconduct. Carroll v. Montgomery
County Public Schools, 201-BH-88.
The claimant was suspended due to the employer's doubts about his job
suitability because the claimant listed a prior handgun
violation conviction on his application. There was no
misconduct connected with the work. Sayyed v. Guide, 604-BR-89.
The claimant was discharged due to a loss of insurance bonding resulting
from a charge of robbery. The claimant had not been convicted
at the time of the discharge. There was no misconduct
connected with the work. Fitzgerald v. Marten's Motors, Inc., 904-BH-89.
The claimant was discharged when he had been charged with the crime
of possessing a controlled dangerous substance. He was
not convicted. At the time the claimant was suspended,
the employer had no information or evidence that the claimant
had committed any misconduct which was connected to the
work other than the criminal accusation. The Board concluded
that the claimant's actions did not constitute misconduct
connected with the work. Ervin v. Anne Arundel County
Public Schools, 02238-BR-97 (1997).
D. Conduct Prior to Employment
Misconduct which took place prior to the employment is
not connected with the work. Jacobs v. New Covenant
Church of God, 1524-BR-92.
The claimant was discharged because the insurance company would no
longer cover him, due to conditions that the employer
knew at the time of hire, was well aware of all along
and had tolerated for quite some time. This is not misconduct
within the meaning of Section 8-1003. Weidman v. Village
Import Cars, 223-BR-91.
The claimant applied for a position as a parking control agent. On
her application, she indicated that she did have a criminal
conviction. The claimant was hired but the employer reserved
the right to have the claimant's background checked. Based
on the background check, the employer refused to commission
her as a parking control agent. The employer was then
required to discharge the claimant, which it did. The
claimant had worked there for four months. There is no
evidence that the claimant falsified her application,
nor is there any evidence that she did any actions that
would amount to misconduct after she became employed.
Allen v. Department of Transit and Traffic, 722-BR-91.
The claimant took a pre-employment physical on April 5th, began work
on April 6th and was discharged on June 14th because the
lab test results from the physical showed the presence
of a controlled dangerous substance in her body on April
5th. The claimant had, in fact, used painkiller pills
prescribed for her father. The misconduct was not connected
with the work, since there was no evidence that the claimant
was intoxicated by the use of drugs, or that the drugs
were in the claimant's system on any day of employment.
Thompson v. East Coast Ice Cream Company, 1535-BR-93.
E. Conduct After Discharge
The conduct of an employee after discharge is not relevant
to the reason for discharge and cannot support a penalty
under Section 8-1002 or 8-1003. Ammons v. B and G
Vending Company, Inc., 816-BR-88.
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V. Burden of Proof
An employer who alleges that a claimant is ineligible for
unemployment compensation by reason of simple, gross or
aggravated misconduct has the burden of proof on this issue
by a preponderance of the evidence. The "preponderance of
the evidence" standard applies even where the alleged misconduct
consists of a criminal act on the part of the employee.
The employer's burden of proof includes the production of
evidence as to the employer's expectations of the employee
and that these expectations were communicated to the employee.
In this respect, evidence of work rules and their violations
which resulted in oral and/or written warnings is particularly relevant.
An employer's burden of proof includes establishing that the alleged
misconduct was in fact the reason for the employee's discharge.
This burden is not satisfied by showing incidents of misconduct
during the course of employment if the employee was not
discharged because of these incidents.
If the employer establishes that the claimant knew about
the particular work rules in question, or was adequately
warned about the claimant's violation(s), then the claimant
must produce evidence which refutes the implication of
such knowledge or warnings. Evidence of this nature may
include that, in practice, the work rules were ignored
by the employer.
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A. In General - On the Employer
The claimant mistakenly punched a coworker's time card with
his own although the coworker had left for the day. There
was no prohibition against punching another's time card.
The claimant was discharged with no warnings. The burden
is on the employer in a gross misconduct case to show that
the claimant's actions were deliberate and willful. In this
case, the evidence is insufficient to show that the claimant's
action was more than a mistake. Therefore, no disqualification
is imposed. Hartman v. Polystyrene Products Company, Inc., 164-BH-83.
While it is true that in a case of alleged gross misconduct, the
burden of going forward is generally on the employer,
the employer's failure to appear at a hearing on the claimant's
appeal of a gross misconduct determination does not mandate
a reversal against the employer. The hearing examiner
is charged to conduct a full inquiry into the facts of
the particular case (COMAR 09.32.06.02E), and a finding
of gross misconduct may be made where the claimant admits
the allegations against her (excessive lateness in face
of warnings). Ward v. Maryland Permalite, Inc., 30-BR-85.
The burden of proof need not be met beyond a reasonable doubt. Even
where the claimant is found by a criminal court to be
not guilty of the act for which he was discharged, the
employer may prove misconduct by a preponderance of the
evidence. Weimer v. Department of Transportation, 869-BH-87.
The claimant correctional officer was discharged because three female
inmates alleged that the claimant had sexual relations
with each of them. The three inmates did not testify at
the hearing. The employer's witnesses had no personal
knowledge about the alleged misconduct. The claimant denied
having sexual relationships with these inmates. There
was insufficient evidence to sustain a finding of misconduct
or gross misconduct. Scruggs v. Division of Correction, 347-BH-89.
The claimant heard her supervisor say that he didn't like her and felt
that she was overpaid. The claimant spoke to the owner
about this remark, but the owner stated that the claimant
was doing fine and would not be fired. Subsequently, however,
the claimant was fired. The employer did not appear at
the hearing. The employer has the burden of proving misconduct
or gross misconduct, but failed to meet this burden. A
claimant does not have to prove why the employer actually
fired her. Ivey v. Catterton Printing Company, 441-BH-89.
The employer was not present at the hearing. The claimant denied each
allegation made by the employer to the claims examiner.
The employer's allegations were not supported by any other
evidence, and the claimant's testimony did not lack credibility.
There was no misconduct. Lipman v. Graphics Factory, Inc., 697-BR-90.
The claimant, who was a shift supervisor, was fired for allegedly allowing
her employees to falsify time sheets and was also charged
with doing this herself. However, not a single specific
example of this alleged misconduct was observed or testified
to by either of the employer's witnesses, and no documents
were introduced relating to any specific incident of misconduct.
The employer provided nothing but conclusory statements
that the claimant had engaged in a certain type of misconduct.
The employer failed to produce sufficient evidence to
meet its burden of proof. Cook v. National Aquarium in Baltimore, 1034-BR-91.
B. When the Burden Shifts to the Employee
Where the employer has shown that the claimant did not
perform a number of simple tasks, and that the staff and
resources were available to do the work, the burden shifts
to the claimant to explain why he was unable to perform
them. Failing such proof, a finding of misconduct is supported.
However, the claimant's discharge was not for gross misconduct
where there is no proof that the claimant's actions were
deliberate or wanton. Finn v. Sheraton Washington Hotel, 89-BR-85.
Money ($900.00) over which the claimant had sole control disappeared,
and the claimant did not report to work or contact the
employer for several days. The claimant did not report
the shortage and had been warned for shortages in the
past. The employer met its burden of proving deliberate,
gross misconduct by proving that money over which the
claimant had sole control disappeared, and the claimant
himself disappeared without explanation. The burden then
shifted to the claimant to provide any reasonable explanation
for these events, but he failed to do so. Stout v. Laurel Race Course, 1030-BH-85.
A violation of an employer's absenteeism policy is not misconduct
per se where that policy does not distinguish between
absences which occurred due to legitimate medical reasons
and absences for which there was no reasonable excuse.
However, where an employee has been absent for a day of
scheduled work, the burden of proof shifts to the employee
to explain the reason for the absence. Leonard v.
St. Agnes Hospital, 62-BR-86.
C. Employer's Failure to Follow Technicalities of Its Own Discharge Procedures
The claimant allowed an unauthorized passenger in the
employer's van, against company policy. The claimant was
discharged summarily, without being granted a meeting
as provided in the employer's disciplinary procedures.
The claimant argued that since the employer did not follow
its own procedural rules in discharging the claimant,
gross misconduct cannot be found. Whether the employer
followed the technicalities of its own discharge procedures
is irrelevant to a finding of misconduct in any case in
which the employer proves that the claimant did, in fact,
commit misconduct. This is true unless (1) the employer's
failure to follow the discharge procedures reflects on
the credibility of the employer's evidence concerning
the actual happening of the act or event of misconduct,
or (2) the employer's failure to follow the procedures
shows that the employer has an ulterior motive for discharging
the claimant. Daniels v. Primary Alcoholism Treatment Program, 301-BH-85.
The agreement between the claimant's union and the employer does not
preclude the Board from a finding of gross misconduct
when the claimant isn't technically in violation of the
agreement, but, where the claimant's actions clearly rise
to the level of gross misconduct. Toy v. Montgomery
County Government, 3205-BR-95.
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VI. Failure to Perform
An employee's deliberate refusal to obey the employer's
direct and reasonable orders is insubordination and may
constitute misconduct or gross misconduct. The reasonableness
of the order depends upon the circumstances. If the employer
demonstrates that an order was reasonable, then the employee
must establish that he was justified in not complying.
In the case of Department of Economic and Employment Development
v. Hager, 96 Md. App. 362, 625 A.2d 342 (1993), the
Maryland Court of Special Appeals held that an employee's
discharge for refusal to accept a transfer to another
shift was for gross misconduct. The Court stated that
when the claimant accepted the job offer, he agreed to
work all shifts. The employer told the claimant that the
transfer was likely to be temporary and that the reassignment
could be shared with another employee.
If an employee is unable to perform due to incompetence or the employer's
failure to provide adequate equipment or materials, there
is no misconduct. If an employee is discharged because
the employee is physically or mentally unable to perform
the job, the discharge is not for misconduct. With respect
to a pregnant employee, 26 U.S.C., Section 3304(a)(12),
which mandates that no person shall be denied compensation
under state law solely on the basis of pregnancy, only
prohibits the state from singling out pregnancy for unfavorable
treatment. See, Wimberly v. Labor and Industrial Relations
Commission of Missouri, 479 U.S. 511, 107 S.Ct. 821 (1987).
Negligence in the performance of one's duties can constitute misconduct
or gross misconduct depending upon the degree of negligence
and the nature of the job. However, an innocent mistake
or a mistake not due to negligence is not misconduct.
Violations of reasonable work rules have been held to be willful
and intentional misconduct. In Painter v. Department
of Employment and Training, 68 Md. App. 356, 511 A.2d
585 (1986), the claimant, who went on a medical leave
due to her inability to work, failed to notify her employer,
for nearly three months, of her release to return to work.
The Court found a deliberate attempt by the claimant to
mislead the employer and held that this was gross misconduct.
However, an employee's failure to follow unreasonable,
unethical or ambiguous rules or procedures is not misconduct.
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A. Failure to Perform Job Duties |
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1. Inadequate Job Performance - In General
A mere showing of substandard performance is not sufficient
to prove gross misconduct or misconduct. Todd v. Harkless
Construction, Inc., 714-BR-89.
The claimant's lack of sales success, despite attempting to generate
sales, is not, in itself, misconduct. The fact that the
claimant discussed his dissatisfaction with other regional
managers is also not, in itself, misconduct. The claimant
was discharged, but not for any misconduct or gross misconduct.
Krevere v. MAD Intelligent Systems, Inc., 890-BR-89.
The claimant was the executive director of a charitable organization.
She was discharged due to her failure to complete necessary
financial reports, failure to pay to the IRS the payroll
taxes withheld, failure to pay unemployment insurance
taxes and failure to inform the employer of these facts.
The claimant was discharged for gross misconduct.
Alexander v. Helping Hand, Inc., 950-BH-89.
The claimant was employed as a part-time office manager for a small
law firm. She was discharged because the employer was
unhappy with the claimant's work product. However, the
claimant was working to the best of her ability and many
of her problems were caused by a poorly equipped and disorganized
office. The employer failed to show that the claimant
committed any degree of misconduct. Knight v. Vincent
Butler, Esq., 585-BR-91.
2. Refusal to Perform; Insubordination
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a. Refusal to Obey a Direct Order or Instruction |
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(1) Gross Misconduct Found
The claimant refused to train an employee after being instructed
to do so by her manager. The claimant gave no reason for
her refusal. The claimant was discharged for gross misconduct.
Romesberg v. Shaffer Ford, Inc., 48-SE-90.
The claimant was discharged for refusing to obey an order to accompany
another driver on a road test. The claimant offered no
coherent reason for refusing a reasonable order which
was related to his ordinary job duties. The claimant was
discharged for gross misconduct. Solomon v. Cantwell
Cleary Company, Inc., 1027-BR-91.
The claimant refused to help out and take some extra stops on his route
when one of the other drivers was ill. Covering for sick
drivers was standard procedure and necessary in the employer's
business. Others had covered for the claimant in the same
way when he was ill. The extra stops did not make the
claimant's work load excessive, even for that one day.
The claimant was discharged for gross misconduct.
Robertson v. Saval Foods Corporation, 1050-BR-92.
(2) No Misconduct Found
The claimant was not told at the time of hire that Saturday
work was required, and refused to work Saturdays only
when the employer gave insufficient notice. There was
no misconduct. Cook v. Family Floors, Inc., 681-BR-87.
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b. Refusal to Do One's Job
The claimant's blatant and repeated refusal to do her job
assignments, many of which had a direct effect on patients,
was gross misconduct. Ishola v. AMI Doctors of Prince
George's County, 487-BR-89.
The claimant consistently refused to operate the drug counter cash
register when asked to do so. This duty was a requirement
of the job which was told to the claimant at the time
of hire. The employer counseled the claimant about this
problem on several occasions. When the claimant again
refused to do this, she was discharged. This was gross
misconduct. Chioli v. Dart Drug/Fantle's Drugstores, 620-BR-89.
c. Refusal Due to Belief of Danger or Hazards
The claimant, a home health aide, was discharged for refusing
to enter the home of and administer care to a patient
suffering from AIDS. The claimant's refusal to do her
job, despite additional counseling and training, and in
view of the minimal risk to the claimant and the extensive
precautions provided by the employer, was gross misconduct.
Vines v. Saint Joseph Hospital, 1114-BH-88.
The claimant refused a direct order to go to a job site because he
heard a rumor that there might be a picket line there
and he feared it would be dangerous. He did not verify
this rumor as true. The claimant was discharged for gross
misconduct. The claimant had no reasonable excuse to refuse
a direct order. Maggio v. American Automatic Sprinkler, 735-BR-89.
d. Refusal to Work Overtime
At the time of hire, the claimant was informed that mandatory
overtime was required. The claimant, having received verbal
and written warnings about his past refusal to work overtime,
failed on another occasion either to work the mandatory
overtime or to explain his failure to the employer. This
was gross misconduct. Copeland v. Ryland Group, 415-BR-86.
The claimant refused the employer's order to return for a one hour
shift at the end of the work day. She had been informed
that she would be fired if she refused. The claimant had
already worked a fragmented shift of more than nine and
one-half hours when the employer asked her to work an
extra hour. She had also already worked 48 hours that
week. Under the circumstances, the employer's order was
unreasonable and the claimant's failure to follow it does
not constitute misconduct or gross misconduct. Byrd
v. Jonathan Enterprises, Inc., 934-BR-89.
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3. Inability to Perform |
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a. Inefficiency or Incompetence
The claimant was unable to perform her job to the satisfaction
of the employer. The claimant tried to do her job to the
best of her ability, but was not capable of doing the job.
The claimant did not have any previous experience doing
clerical office work. There was no evidence that the claimant
was discharged for any misconduct on her part. Cumor
v. Computers Communications Group, 902-BH-87.
The claimant made a judgment concerning the proper carbonation level
in three separate incidents, all of which resulted in
loss to the employer. The employer showed that the claimant
did not use good judgment, but failed to prove that this
was due to either the claimant's negligence or deliberate
efforts to disregard the employer's interest. There was
no misconduct. Greenwood v. Royal Crown Bottling Company, 793-BR-88.
b. Physical or Mental Inability to Work
A claimant's failure to work to the best of her ability,
thereby causing a failure to meet her employer's production
standards for which she was fired, constitutes simple
misconduct under Section 8-1003 where the claimant had
some medical problems towards the end of her employment.
Martz v. Nikki, Inc., 294-BR-85.
The claimant was discharged for bizarre, loud and aggressive behavior
which resulted from the side effects of legally prescribed
drugs. The claimant provided medical documentation that
the drugs could have been primarily responsible for the
behavior leading directly to the discharge. There was
no misconduct. Day v. Sinai Hospital of Baltimore, 540-BH-85.
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4. Negligence |
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a. Gross Misconduct
The claimant was a competent medical laboratory technician
who was trained in the use of the computer and the procedures
of his job. The claimant made a number of errors which clearly
could have resulted in serious injury to patients for whom
the testing was performed. The errors were the result of
negligence in entering data into the computer. The claimant
was warned several times about his error rate, but the errors
increased. When a claimant's work involves critical risks
to the life and health of other persons, a higher degree
of care is required. The claimant was discharged for gross
misconduct. Roberts v. Maryland Medical Lab, Inc., 1215-BR-88.
After having some expensive mishaps with the employer's equipment,
the claimant should have adjusted his behavior. The employer
specifically warned the claimant to have someone watch
him whenever he backed the truck. The claimant failed
to do so and caused another incident of property damage.
In the last incident, the claimant overturned the truck
during what should have been a normal road maneuver. The
claimant was discharged for gross misconduct. Jones
v. Allstate Building Supply Company, Inc., 700-BR-89.
b. Misconduct
The employer proved that during the last six to nine months,
the claimant made many careless mistakes or omissions
that resulted in problems with customers' cases and delayed
several settlements. However, the employer failed to prove
that the claimant's neglect was accompanied by a gross
indifference to the employer's interest or resulted from
a regular and wanton disregard of her obligations. The
claimant was discharged for misconduct. Dreher v.
Provident Bank of Maryland, 1216-BR-88.
The claimant nurse was fired for an accumulation of job deficiencies.
The claimant made none of these mistakes deliberately,
and she was not grossly negligent, but she was not as
careful in her job duties as she should have been. Although
mere incompetence is not misconduct, there was a degree
of negligence in the claimant's conduct which amounts
to misconduct. Andreski v. Crofton Convalescent Center, 1431-BR-93.
c. Cash Shortages
The claimant's repeated cash shortages, which resulted
from the careless manner in which he conducted the employer's
business, constitute misconduct under Section 8-1003.
However, without evidence of deliberate and willful acts,
a finding of gross misconduct is not supported. Kanter
v. Chillum Corporation, 1028-SE-83.
The claimant had sole control of the employer's money during her shift.
There was a shortage of $232 during that shift and this
was not attributable to mechanical or electronic error.
The claimant did not appear at the hearing to present
evidence of any mitigating circumstances. The claimant
was discharged for gross misconduct. Floyd v. Parkway,
Inc., 1108-BR-89.
d. Accidents
The claimant tractor-trailer driver was involved in nine
accidents in six years of employment. The last accident
resulted from the claimant's failure, because he was in
a hurry, to either set the air brakes or chock the wheels
as required by procedure. The claimant's deliberate choice
to shortcut the parking procedures showed a gross indifference
to the financial risk imposed on the employer and the
safety risk to the general public, and constitutes gross
misconduct. Jefferson v. Overnite Transportation, 252-BH-83.
The claimant was discharged for striking a car in the rear. Not every
minor slip that causes one to be considered negligent
from the perspective of traffic laws is misconduct. Without
a showing of deliberate or reckless actions, misconduct
is not supported. Archie v. H.C. Gabler, Inc., 711-BR-83.
The claimant had four accidents with the company truck, two due to
his negligence and two not due to any fault on his part.
The claimant's discharge was for simple misconduct.
Draughn v. Apex Warehouse, Inc., 880-BR-87.
e. Mistakes
Although the record supported a conclusion that the claimant
made some mistakes in the performance of his job duties
as a machinist, the employer failed to prove, by the number
or type of mistakes, that the mistakes were due to the
claimant's negligence. Therefore, no disqualification
is appropriate. Keller v. Eastport International, 264-BH-85.
The claimant was discharged for mistakenly painting the wrong floor.
An innocent mistake or incompetence does not constitute
misconduct. Morales v. Bryan and Associates, Inc., 476-BR-85.
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5. Alterations of Conditions of Employment
The claimant was discharged for refusing to sign a policy
that would have substantially altered his employment benefits.
There was no misconduct. Richardson v. Wallace Shipbuilding
Company, Inc., 420-BR-89.
The employer tried to renegotiate the claimant's hours of work. When
the claimant would not agree to a change, the employer
terminated her. The claimant's refusal to change the hours
of work she was promised is not misconduct or gross misconduct.
Teal v. Mellon Bank, 69-BR-92.
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B. Failure to Follow Rules and Procedures |
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1. In General
An employer's requirement that the claimant dress in a professional
manner, which was made known to her at the time of hiring
as a receptionist, was reasonable, and her discharge after
she was warned but continued to wear T-shirts and tennis
shoes, was for simple misconduct. Kidwell v. Mid-Atlantic
Hambro, Inc., 119-BH-86.
The claimant presumed that the employer acquiesced to the claimant's
administration of medication to a sick animal which the
claimant knew or should have known that the employer did
not normally approve. A violation of the normally authorized
procedures requires an explicit authorization. The claimant's
failure to get such authorization amounts to misconduct.
Gray v. Valley Animal Hospital, Inc., 224-BR-90.
The claimant was required, pursuant to the contract between the employer
and the union, to submit to a physical fitness for duty
exam. The claimant refused. This was gross misconduct.
Denorey v. Genstar Stone Products Company, 1198-BR-91.
Where a claimant refused to properly arrange for a continued absence by
signing a leave of absence form and providing a doctor's
statement, the claimant committed gross misconduct.
Ullman v. Anne Arundel County Public Schools, 498-BR-93.
2. Importance of Policy Violations
The employer armored truck service required that employees
count each bag of valuables as it was placed on the truck.
The claimant and a coworker deliberately skipped this
step and therefore did not immediately discover that a
bag containing up to $12,000.00 in cash and/or checks
had fallen off the truck. The claimant's deliberate violation
of an important security procedure, where huge amounts
of money were at stake and where the security violation
greatly increased the risk of loss to the employer, constitutes
gross misconduct. Dunavent v. Federal Armored Express,
Inc., 949-BR-85.
The claimant was discharged for possession of a gun on the employer's
premises, violating the employer's policy. This was gross
misconduct. Rosendale v. Housing Authority of Baltimore City, 1110-BH-88.
The claimant mislabeled specimens and failed to follow proper procedures
on two occasions. She was suspended after the first incident
and discharged after the second. These incidents were
serious, could have led to dangerous consequences for
the patients involved and were traced directly back to
the claimant. A higher degree of care is required of claimants
whose work involves critical risks to the life and health
of others. The claimant was discharged for gross misconduct.
Winestock v. Dimensions Health Corporation, 681-BR-91.
3. Illegal or Unethical Requirements
The claimant gas station attendant, was discharged for
refusal to reimburse the employer for shortages incurred
on the job since payment of the shortages would reduce
her pay to below the minimum wage. The employer's requirement
of reimbursement was illegal under the Fair Labor Standards
Act and its regulations. Therefore, no penalty was imposed
on the claimant for violating the employer's rule.
Hatfield v. Tri-State Oil, 390-BR-82.
4. Unreasonable Requirements
The claimant was discharged because he insisted upon commuting
rather than relocating upon being transferred by the employer.
The employer's policy requiring relocation was unreasonable
and the claimant's failure to adhere thereto does not
constitute misconduct. Leon v. Southern States Cooperative, 885-BR-83.
Where the policy was ambiguous and the claimant reasonably believed
she was following it, her discharge was not for misconduct.
Walker v. Domino's Pizza of Maryland, Inc., 200-BH-87.
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