Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals
Introduction
The provisions dealing with discharge are located in Sections 8-1002 and 8-1003 of the Labor and Employment Article of the Maryland Annotated Code.
The intent of unemployment benefits is to protect workers and their families from involuntary unemployment. Fino v. Maryland Employment Security Board, 218 Md. 504, 147 A.2d 738 (1959). If a claimant is discharged for reasons which do not constitute misconduct, no penalty will be applied against the claimant's unemployment insurance benefits. However, if a claimant is found to be discharged for simple misconduct, gross misconduct or aggravated misconduct, benefits will be delayed or denied.
Effective March 1, 2011, The General Assembly increased the penalties for misconduct and gross misconduct.
If a claimant is discharged for simple misconduct within the meaning of Section 8-1003, a penalty consisting of a delay of payments for five to ten weeks is imposed. The duration of the penalty period is discretionary with the fact finder. Once the penalty period expires, the claimant may still be eligible for the full amount of unemployment insurance benefits available under the law.
If the claimant is discharged for gross misconduct under Section 8-1002, the claimant will be disqualified until he becomes reemployed, earns at least 20 times his weekly benefit amount in covered employment and thereafter becomes unemployed through no fault of his own.
In 1992, the legislature enacted Section 8-1002.1 which defined aggravated misconduct. The law became effective on January 1, 1993. Under this section, as enacted at that time, if a claimant was discharged for aggravated misconduct, the duration of the disqualification was the same as it is under Section 8-1002. However, in addition to this, the claimant's wages earned from the employer against whom he committed the aggravated misconduct could not be used to establish the claimant's weekly benefit amount in any benefit year. This was the harshest penalty for misconduct since the wage deletion could effectively bar a claimant from receiving benefits until he was able to build up a wage base from subsequent employment.
In 1995, the legislature repealed Section 8-1002.1 and reenacted it with amendments. Under the new Section 8-1002.1, if a claimant is discharged for aggravated misconduct, he will be disqualified until he becomes reemployed, earns at least 30 times his weekly benefit amount in covered employment and thereafter becomes unemployed through no fault of his own. However, the claimant's wages earned from the employer against whom he committed aggravated misconduct will no longer be deleted from the claimant's wages used to establish his weekly benefit amount. The amendment to Section 8-1002.1 applies to all new claims filed on or after October 1, 1995.
Discharge - Sections 8-1002, 8-1002.1, 8-1003
I. What is a Discharge
Before a penalty can be applied under Sections 8-1002, 8-1002.1 or 8-1003, it must be shown that the employer discharged or suspended the claimant. In some cases, it is clear that the employer discharged the claimant, either verbally or in writing. However, in other cases, the actions and words of the claimant and employer are unclear and must be interpreted to determine whether a discharge occurred.
For example, an employee's resignation in lieu of discharge is treated as a discharge where the employee has no choice but to resign or be discharged. However, where an employee resigns in order to avoid facing charges that might result in a discharge, the resignation is treated as a voluntary quit under Section 8-1001. A claimant's failure to file a grievance or appeal a discharge does not convert the discharge into a voluntary quit. A claimant's acceleration of the date of departure after being discharged does not change the discharge into a voluntary quit. Similarly, an employer's acceleration of the date of a claimant's resignation, (unless due to intervening acts of misconduct by the claimant), does not change the claimant's resignation into a discharge.
Where the employer offers employees monetary incentives to accept early retirement, but the employees would be laid off whether or not they accepted the incentive, the employees are considered to be discharged.
If the employer separates an employee from his job during or following an approved leave of absence, this is considered a discharge.
Finally, when a claimant's assignment for a temporary agency ends, the claimant is considered to be discharged. The claimant's decision not to reapply for more assignments does not create a voluntary quit.
A. What Constitutes a Discharge?
The claimant was discharged for a series of absences and incidents of tardiness, not all of which were adequately explained. After filing for unemployment insurance benefits, the claimant was reinstated through the company grievance procedure. The fact that the claimant was later reinstated does not change the fact that the claimant was originally discharged for absenteeism. The claimant was disqualified for misconduct under Section 8-1003. Campbell v. Montgomery Ward, 213-BH-85.
Where, under the terms of the sale of the business, the claimant had no choice but to leave if he failed to meet certain conditions to purchase the business, and the employer wanted him to leave, the claimant's departure is a discharge, but not for misconduct. Gasch v. AFS, Inc., 3-BR-87.
The claimant, who had a conflict with her supervisor, returned from her vacation and saw the locks changed, her desk cleared, her commissions not deposited, and heard from a coworker that she would be fired. The claimant correctly concluded that she had been discharged. Adams v. Fairfax Mortgage Corporation, 119-BH-88.
The claimant was discharged after a telephone conversation during which she stated her anger at her employer, and the employer stated to her, "If that's the way you feel, then you might as well not come in anymore." The claimant's reply of "Fine," does not make it a quit. Dei Svaldi v. Martin Taubenfeld, D.D.S., P.A., 1074-BR-88.
A suspension from work for an indefinite duration is a discharge where the suspension can be ended only upon the payment of money and where it is also accompanied by the seizure of the tools by which the employee normally earns his salary. The claimant was discharged as soon as a suspension under these circumstances was imposed on him. Gladding v. Montgomery Ward and Company, 1120-BR-92.
The claimant was hired to work the night shift, but had issues with daycare and asked to be put on the day shift. The employer stated it was not possible at that time to move to the day shift, but the employer would see what could be done. A week later, the claimant contacted the employer about the availability of day shifts, but nothing was available at that time. When she contacted the employer the following week, she was informed she would no longer be on the schedule at all. The claimant’s manger apparently believed the claimant would only work days and did not schedule her because of this. The Board found that the claimant did not quit the job. She never stated she was she was quitting and never intended to quit. She remained willing to work the night shift, but preferred to move to the day shift. The employer did not produce evidence that the claimant was discharged for any disqualifying reason. Williams v. Bob Evans Farms, Inc., 4558-BR-12.
On July 14, 2012, the employer sent the claimant home because of a lack of work. The claimant contacted the employer and was informed that he was not on the schedule for the next two weeks. The claimant subsequently attempted to contact a manager, but never received a return phone call. There is sufficient evidence to support a conclusion that the claimant’s position was filled by a replacement worker. It is reasonable, therefore, for the claimant to believe that he was discharged. The claimant did not sufficiently manifest the intent to voluntarily quit. The employer, through its actions, manifested the intent to discharge the claimant. Because the employer was not present at the hearing, there is insufficient evidence that the claimant’s attendance constituted a course of wrongful conduct or a violation of work place rule. The Board held the claimant was discharged, but not for misconduct or gross misconduct. Ayres v. Dough Roller, Inc., 921-BR-13.
The employer told the claimant he could “get out” if he did not like things. The claimant interpreted this to mean he was discharged and acted accordingly. The Board finds this interpretation of the employer’s statement to have been reasonable. The employer did not present sufficient evidence to allow a finding that the claimant was discharged for any degree of misconduct. The argument between the claimant and his supervisor was the result of a recurring disagreement between the two individuals. The claimant was not insubordinate and not unreasonable. The Board cannot find, from competent evidence in the record, the claimant’s discharge to have been for disqualifying misconduct. Miner v. MDR Services, Inc., 1889-BR-13.
B. Discharge or Quit?
1. In General
The claimant's supervisor told her she would be terminated the following day. The claimant then offered her resignation in angry response to this announcement. The employer refused to allow her to revoke her resignation. The claimant was discharged, but not for any misconduct or gross misconduct. Hardy v. Blue Cross and Blue Shield, 490-BR-87.
The claimant, who submitted a letter of resignation after learning of her termination, was discharged. The claimant's earlier verbal communication to coworkers of an intention to resign, where no such communication was made to the employer, is not a voluntary quit. Stewart v. Access Enterprises, 230-BR-88.
The claimant was employed pursuant to a written, five-year contract. As the contract came to an end, neither the claimant nor the employer discussed extending the contract. The claimant correctly believed that the employer did not want him in the position anymore, although the employer did not communicate this to the claimant. If the claimant had asked to continue his job, his request would have been denied. Therefore, the claimant did not quit. He was discharged, but not for misconduct or gross misconduct connected with the work. Tenney v. Andrews Food Company, Inc., 153-BR-89.
Where the claimant was hired under the Military Spouse Preferential Priority Placement Program and then became legally barred from continuing that job due to the transfer of her spouse, the claimant did not voluntarily quit her job. She was discharged for reasons that do not constitute misconduct within the meaning of Section 8-1003. Holmes v. Department of the Army, 1175-BR-94.
Where the claimant was told that a new person was replacing her in her supervisory position and that the claimant would "have other things to do", she was discharged from her supervisory position. The claimant lacked the requisite "intent" to have voluntarily quit her supervisory position. Accordingly, the claimant was discharged, but not for gross misconduct or misconduct connected with the work. Mettle v. Pikesville Nursing-Conva House of Baltimore County, Inc., 853-BR-01.
During the claimant’s vacation, the employer removed him from computer access, terminated him from the payroll system and turned off his phone messaging system. The claimant had every reasonable indication that he was discharged from employment. The claimant was discharged because he allegedly took an unauthorized vacation. However, at the time he took off from work, he honestly believed he was on an authorized vacation leave. There was no misconduct. Akuya v. Performance Logistics LLC, 2254-BR-11.
The claimant called the office manager to report that she was going to be absent for one day because her mother was ill. The office manager approved the absence. Later that evening, the office manager called the claimant and told her that Dr. Hill, the employer, did not want the claimant to come to work anymore. The claimant had not been absent previously and had no written or verbal warnings. The claimant did not contact Dr. Hill to verify what the officer manager said. As a result of the office manger’s statement, the claimant stopped reporting to work. The Board held that the claimant was discharged by the office manager over the telephone. The claimant was not expected to verify her termination by calling Dr. Hill. The office manager was in a position of authority within the employer’s structure and had spoken to Dr. Hill. She was not some random co-worker who was reporting a rumor or speculation to the claimant. The claimant should not be expected to call anyone higher in authority under the circumstances. The employer did not appear at the hearing and did not present any evidence of the reason for the claimant’s termination. There is nothing in the record upon which a finding of misconduct or gross misconduct may be based. Adeosun v. Hill Pediatric Dentistry, 1130-BR-12.
On June 24, 2010, the claimant told his supervisor that he had a tentative offer of other work. The claimant had been looking for something which would allow him to work more steady hours than he had been able to with this employer. He told his supervisor that he would know in about three weeks what his start date would be. The claimant offered to stay and train any replacement the employer would hire. The claimant did not work after June 28, 2010 because the employer did not have work ready for the claimant. The claimant did not hear form the employer until July 5, 2010, when he was told to return the employer’s truck and credit card. The Board held that the claimant was discharged. The employer acted to end the employment relationship in advance of the claimant providing any actual notice or proposed last day of work. The claimant was released from his employment because of his expressed intention to quit at some date in the future. The claimant did not know when the new job would start, only that he would accept when it became available to him. There was insufficient evidence of any misconduct. Thompson v. Jiffy Plumbing & Heating, Inc., 2088-BR-11.
The claimant did not quit her position with this employer. The claimant was discharged at the end of the regular school term when the employer did not, as was customary, offer her additional work during the summer. The claimant had no plans to leave his employment, but when there was no further employment, the claimant was discharged. The employer’s actions effectively laid the claimant off work. A lay-off, due to a lack of work, or no offer of work, is non-disqualifying discharge. The employer did not present any evidence which would show that the claimant committed some act or omission which was deliberate or willful disregard of the employer’s expected standards of behavior. The employer did not present evidence which demonstrated that the claimant was repeatedly careless or grossly negligent. Therefore, the evidence will not support a finding that the claimant was discharged for gross misconduct or misconduct. Mathews v. Medell Ventures, Inc., 819-BR-12.
The claimant was hired for a specific job which was scheduled to be completed in July 2011. The claimant worked to the employer’s satisfaction through the end of this assignment. The job ended of its own terms and the claimant became unemployed. The claimant did not accept an offer of additional employment because it would have required relocation, which he was not able to do because of his housing and his concurrent job training program. A claimant who becomes unemployed when a job ends is laid off due to lack of work. Such a separation is a discharge. The claimant worked for the duration of the work assignment. There was no disqualifying act or omission by the claimant which precipitated his termination from employment. The claimant was discharged, but for no misconduct. Hale v. Building Installation Group, Inc., 1655-BR-12.
The claimant was hired on a 12 month assignment to work in Afghanistan. His assignment was scheduled to end on August 27, 2011. In June 2011, the employer mailed the claimant an “intent to stay” memo asking whether the claimant wanted to extend his assignment for another 12 months or end the assignment August 27, 2011. The claimant chose to end the assignment on August 27, 2011. The Board has long held that when a claimant is hired for a specific period of time or a specific assignment, the claimant is discharged, for no misconduct, when the end of the term arrives or the assignment is completed. The claimant was not required to accept another assignment. The claimant was discharged, but for no misconduct or gross misconduct. Gardner v. Lockheed Martin Operations Support, Inc., 2222-BR-12.
The claimant was employed pursuant to a contract that was set to expire on February 29, 2012. The claimant offered the employer the opportunity to extend the contract as written. The employer counter-offered with an extension agreement that materially altered the claimant’s original contract terms. The employer proposed to void a bonus component of the claimant’s original contract. The claimant was either to accept a counteroffer by executing the extension agreement or by reporting to work on March 1, 2012. The claimant declined to execute this contract and did not report to work. The Board found that in this case the claimant’s intent is clear. She was willing to continue her employment under the current terms of her written contract which included payment of a bonus. She did not manifest an intention to voluntarily resign. The claimant was discharged. The employer offered no evidence to show that her discharge was due to misconduct. Klett v. Sigma Pharmaceuticals, Inc., 5999-BR-12.
The claimant did not voluntarily leave his employment. The claimant voluntarily transferred from one facility within the employer’s overall system to another facility. At all times, the claimant remained employed by the U.S. Postal Service. It was not until the claimant reported to his new facility that he was advised that he could not begin working there. Circumstances had changed between the time the claimant was approved for the transfer and the time he reported for duty. The employer initiated the separation for reasons which were unrelated to the claimant or his conduct. This was a lay-off, due to a lack of available work. As such it was a non-disqualifying discharge. Wolk v. U.S. Postal Service, 1020-BR-13.
2. Resignation in Lieu of Discharge or to Avoid Facing Charges
The claimant resigned in lieu of termination for excessive absenteeism in the face of warnings. A claimant who resigns in lieu of discharge does not show the requisite intent to quit under Allen v. CORE Target City Youth Program, 275 Md. 69, 338 A.2d 237 (1975). In this case, the claimant was discharged for gross misconduct. Tressler v. Anchor Motor Freight, 105-BR-83.
A resignation submitted in response to charges which might result in discharge is a voluntary quit. However, a claimant who is given the choice of resigning or being discharged and who subsequently resigns, will be considered as having been discharged for the purposes of the Maryland Unemployment Insurance Law. Hickman v. Crown Central Petroleum Corporation, 873-BR-88.
3. Failure to File Grievance or Appeal
Management personnel conveyed to the claimant that she was not to report for work anymore, due to her difficulties in learning the work. This management decision constitutes a discharge. A discharged employee is under no obligation to appeal to a higher level of management. Cottman v. Hill and Sons Management Company, Inc., 725-BR-92.
During the mandatory state police background investigation, the claimant worked as a security guard on a probationary status. The claimant was subsequently disapproved by the state police. The claimant had the right to appeal the disapproval, but did not do so. He was subsequently discharged. The claimant's failure to appeal the disapproval is not a quit. The police permit was denied, and the claimant was not allowed to work. This is a discharge. Pitts v. BPS Guard Services, Inc., 1858-BR-92.
4. Claimant Accelerates Time of Discharge
The claimant's acceleration of the date of departure from employment after being informed of a planned layoff due to the sale of the business does not constitute a voluntary quit. Helsel v. Johnson Shell, Inc., 85-BR-84.
The employer informed the claimant that his job would be coming to an end because the gas station where he worked was to be sold. The new owners did not approach the claimant about continuing to work. The claimant then had to give up his apartment. He was required to give his landlord 30 days' notice, which he did. Subsequently, the employer asked the claimant to work an extra two weeks, but the claimant declined because he had to be out of his apartment before then. The claimant was discharged, but not for any misconduct or gross misconduct. The claimant's inability to work the last two weeks was caused directly by the employer's action informing him that his job was coming to an end. Terrell v. Settle, 849-BR-89.
5. Employer Accelerates Time of Quit
After incurring a long history of unexcused absences and tardiness, the claimant submitted a resignation to be effective in two weeks. During the notice period, the claimant was away from the work station and became disruptive. The claimant was discharged prior to the effective date of the resignation. The termination was not merely an acceleration of the leaving, but was for intervening violations of employment rules constituting gross misconduct. Salisbury v. Levinson and Klein, 395-BH-84.
The claimant submitted a resignation giving two weeks' notice but was discharged prior to the expiration of the notice period for an act which did not constitute misconduct. Unlike the Salisbury case, supra, the claimant was not discharged for an independent reason. The discharge was primarily an acceleration of the resignation date. Therefore, the claimant will be considered to have voluntarily quit under Section 8-1001 from the effective date of the resignation. However, the claimant is not disqualified from benefits during the notice period. Nazarini v. Chesapeake Bay Seafood House, 294-BR-86.
The claimant submitted a resignation letter to her employer dated April 23, 2012 advising her employer that she was resigning. The claimant provided two weeks’ notice stating that her last day of work would be May 4, 2012. The employer, however, accelerated the claimant’s last day of work to April 27, 2012, one week early. The Board has consistently held that when an employee resigns, gives notice and provides a date as her last day of employment, if the employer accelerates her final day of work, the employer has discharged her for that time period and it should be determined whether or not the claimant is entitled to benefits for that time frame. In this case, the employer accelerated the claimant’s final day of employment because the claimant had completed all of her projects and her services were no longer needed. The claimant was not discharged from the week of April 29, 2012 for any misconduct. Holstein v. Advanced Education Systems, 2440-BR-13.
6. Voluntary Quit or Discharge?
a. Loss of Ability to Drive
The claimant in this case could not continue employment because he failed the required test to obtain his federal commercial driver's license. There was no misconduct involved in the claimant failing the test. The claimant's efforts to prepare himself for the test were reasonable. He failed the test due to simple inability. The claimant was discharged, but not for any misconduct. Battle v. Mass Transit Administration, 41-BR-93.
The claimant, a diabetic, was discharged due to a mandatory requirement that truck drivers are not legally allowed to drive if they take insulin. The claimant's medical condition was not the result of any action on the claimant's part, but due to a disease which the claimant could not control. The claimant did not voluntarily quit. Therefore, the hearing examiner's finding that the claimant voluntarily quit with valid circumstances is an error of law. The claimant was discharged, but not for any misconduct. Styron v. Baltimore International Warehouse Company, Inc., 1738-BR-95.
The claimant was a CDL driver, He had an affirmative duty to keep his driver’s license in good standing as a condition of employment. The claimant forgot to pay tickets that had been issued in Maryland and Texas. His license was suspended. The claimant breached his duty to keep his license in good standing. Notwithstanding, the Board finds insufficient evidence that the claimant’s actions evinced a deliberate or gross disregard to his employer’s interests or that the claimant’s actions constituted a regular and wanton disregard of his obligation to the employer. Therefore, a finding of gross misconduct is not supported. However, because intent is not an element of misconduct, and because the claimant breached his duty to keep his license in good standing, a finding of simple misconduct is supported. The Board finds the minimum ten-week penalty appropriate. Blunt v. G & R Trucking Inc., 1723-BR-14.
In July 2014, the employer learned that the claimant’s driver’s license had been suspended in January 2014. The claimant was unable to legally perform essential duties of his job that included driving. The claimant did not sufficiently demonstrate that his license was in good standing. The claimant knew, or should have known, that his license was suspended since January 2014. The claimant was improperly working while his driver’s license was suspended. The claimant’s actions in this regard are a willful and deliberate disregard of the standards of behavior that his employer has a right to expect. The claimant did not appear at the appeal hearing to provide testimony. The Board held that a finding of gross misconduct is supported. Thornton v. Pohanka of Salisbury, Inc., 130-BR-15.
b. Failure to Meet Occupational Requirements
(1) Security Clearance
The claimant was required to have a top secret clearance in order to keep his job. The claimant had a duty to his employer to conduct himself in such a way as to maintain his security clearance. To the extent that the claimant lost his clearance due to circumstances beyond his control, the loss of the clearance cannot be considered misconduct. However, culpable conduct leading to the loss of his clearance was misconduct. Davis v. National Security Agency, 853-BR-92.
(2) Required Courses/Certification
The claimant schoolteacher was separated from her job after failing to obtain the six college credits necessary to maintain her certification. Although the claimant took courses in good faith, she failed to accrue the required credits due to a billing dispute. No penalty under either Section 8-1001 or Section 8-1003 is imposed, since the claimant made a good faith effort to comply with the requirements. Abraham v. Prince George's County Public Schools, 487-BH-85.
The claimant was hired as a performing arts teacher on a conditional teaching certificate requiring successful completion of the Praxis I test for Reading, Writing and Mathematics within one year of her hiring. The claimant chose not to take the test because she did not wish to spend the money required to register for the test and because she believed she would not be able to pass the Mathematics test. Normally, the Board would have awarded unemployment benefits had the claimant failed the test after exercising due diligence. However, since the claimant did not take the test knowing her employment relied upon it, the Board considered her actions to be gross misconduct. Butler v. Innovative Learning Center, Inc., 2129-BR-06.
The claimant, a teacher, was required to be recertified in order for the employer to continue to utilize her services. The claimant was aware of this requirement and had more than one year to complete her recertification, but did not exercise sufficient diligence in pursuing this. The claimant had ample opportunity to prepare for and take the Praxis exam prior to the end of her contract year. The claimant’s failure to obtain the required certification was gross misconduct. Cromer v. Crosswood, Inc., 2087-BR-11.
The claimant was required to maintain a valid security officer’s license in order to retain his employment with this employer. The claimant’s license was due to expire on August 31, 2010. While the employer sent the claimant a reminder letter, the burden was on the claimant to maintain a valid security officer’s license. The claimant waited until August 23, 2010 to file for a renewal. He was not able to get the renewal by the time his license expired and was discharged. The Board held this was gross misconduct. Butler v. Prince Security Services, Inc., 1612-BR-11.
The claimant knew that maintaining a valid Certified Nursing Assistant (CNA) license was a requirement of her employment. The responsibility for ensuring that her license did not lapse rests with the claimant, not the employer. The information regarding when the claimant’s license was due to expire was readily available to the claimant. The claimant should have taken steps well in advance of the expiration date of her license to have it renewed. The claimant’s actions rose to the level of gross misconduct. Brown v. Dimensions Health Corporation, 667-BR-11.
The claimant was required to have a teaching certification as a condition of continued employment. To obtain the teaching certification, the claimant was required to engage in a course of study and pass the Praxis I and Praxis II examinations. From 2006 to September 2009, the claimant was automatically granted a teaching certification waiver. As of September 2009, the claimant pursued her teaching certification in good faith and with due diligence. The 2011 teaching certification waiver denial was beyond the claimant’s control. The claimant had worked and pursued her teaching certification to the best of her ability. The fact that the employer could lose its contract with the Department of Labor is neither mitigating nor relevant as to whether the claimant was discharged for misconduct in this case. The weight of the credible evidence does not support a finding that the claimant proximately violated work place rule, engaged in a course of wrongful conduct or was willfully or deliberately acting with gross disregard to her employer’s interests. Brooks - Leftwich v. Adams & Associates, Inc., 3023-BR-12.
The claimant worked as a dental assistant and was required to have a valid license to work as a dental radiation technologist. In 2009, prior to working for this employer, the claimant signed a consent agreement with the State Board of Dental Examiners. Under the terms of the consent order, the claimant was required to submit proof of 10 hours of completed pro bono services and proof of an anonymous $100 donation to an approved charity. The claimant violated the terms of the order and her license was suspended for three years, The employer discovered this and discharged the claimant. The claimant never told the employer about the conditions on her license. The Board held that the claimant demonstrated a deliberate and willful disregard of the standards that the employer had a right to expect and showed a gross indifference to the employer’s interests. Cross v. Dental Care Alliance LLC, 5978-BR-12.
The claimant received a teaching certification valid from June 1, 2007 to June 30, 2012. By memorandum sent on November 2, 2007, the employer informed the claimant that by June 30, 3012, he needed to complete all necessary requirements to maintain his certification. The employer reminded him of these requirements in 2008 and 2011. The claimant procrastinated in obtaining the credits he needed and in submitting the paperwork. The employer had communicated its need for additional information to the claimant through an e-mail to which the claimant no longer had access because of an action taken by the employer. The claimant had provided an alternative e-mail, but this was neither captured nor used by the employer to communicate with the claimant. The claimant was unaware of any need for additional action on his part because of this. The Board found that the claimant’s procrastination was not gross misconduct. The claimant was not acting with deliberate disregard for the employer’s interests or expectations. He was careless or negligent in this matter, but this was neither repeated carelessness nor gross negligence. This was a dereliction of the duty owed by the claimant to the employer. As such, it was simple misconduct, Scholz v. Harford County Public Schools, 874-BR-13.
In order to maintain her employment as a patient care technician, the claimant was required to have a valid state certification. The claimant’s certification was due to expire in August 2013. Prior to the expiration of the claimant’s certification, the employer advised the claimant that she needed to renew her certification. The renewal process could be done online and in one day. The claimant failed to renew her certification before its expiration and was discharged in August 2013 when she was no longer certified by the state to work as a patient care technician. The claimant failed to appear at the Lower Appeals Division hearing. The employer appeared and gave credible testimony. Absent any evidence that the claimant made a reasonable attempt to maintain her state certification, her separation from this separation from this employment shall be found to be for gross misconduct. Staley v. Renal Treatment Centers Mid-Atlantic, Inc., 957-BR-14.
When the claimant was hired as an ultrasound technician in October 2011, she was informed that she was required to obtain certification within two years of the date of hire. Certification required that the claimant pass two written exams. The claimant took the first test in March 2012, but failed. In May 2012, the employer reminded the claimant that she had one year to obtain her certification. The claimant took the first test again in October, 2012 and passed. One year later, on October 10, 2013, the employer informed the claimant that her two-year time period had expired and she had not completed her certification. She was given 30 days to take and pass the second exam. On October 26, 2013, she took the second exam, but failed. The Board held that the claimant did not exert due diligence to secure a certification within two years of hiring. She waited over one year to attempt to pass the second required test. Her behavior demonstrated a deliberate and willful disregard of standards of behavior the employer had a right to expect. The claimant was discharged for gross misconduct. Hoffman v. Baltimore Washington Medical Center, Inc., 815-BR-14.
The claimant worked for the employer for two years and was aware of the requirement for recertification in CPR and first aid. The claimant’s certification expired on September 19, 2013. Classes for recertification were available in August; however, the claimant made no attempt to sign up for the refresher courses. The claimant attempted to sign up for classes in September, but the classes were filled. The claimant was placed on a 30-day suspension and directed to secure the recertification. The claimant made no further effort to obtain her recertification and was discharged on October 21, 2013. The Board found that the claimant did not exert due diligence in obtaining her recertification. The claimant’s failure to maintain the mandatory certifications, having been made aware at the time of hire, shows a willful disregard of the employer’s interest and a breach of obligations expected by the employer. The claimant engaged in gross misconduct. Rowley v. Chimes, Inc., 529-BR-14.
(3) Work Visa
A claimant who was less than diligent in renewing his work visa prior to its expiration date despite reminders from his employer was found to have been discharged for misconduct. Senatus v. Perdue Farms, Inc., 01156-BR-99 (1999).
7. Retirement Incentives
The employer planned to lay off a definite number of employees and eliminate their jobs. Rather than make an arbitrary decision on its own, the employer offered employees monetary inducements to encourage them to voluntarily accept a layoff. However, these employees really did not have a choice. In all three cases, their jobs were eliminated. Although they were given an opportunity to find other jobs in the company, the reality was that there were very few available, at least within the local area in which they lived. Furthermore, the longer an employee stayed on and thought about the inducement package, the less money he would receive. Each employee knew that he would eventually be laid off, with or without the inducement package. This is a discharge. Bishop, et al. v. Digital Equipment Corporation, 270-BH-91.
The employer was attempting to downsize the work force. It offered a special pension package to everyone in the claimant's department. The claimant also received a further cash incentive to retire, consisting of a lump sum payment equal to six months' pay. The claimant, fearing an additional layoff and a subsequent withdrawal of the incentive package, decided to accept the package and take early retirement. The claimant's fears of imminent layoff and withdrawal of the incentive package were justified. There was no evidence of any misconduct on the claimant's part. The claimant was discharged, but not for any misconduct under Section 8-1002 or 8-1003. Lewis v. AT&T Communications, Inc., 426-BR-91.
C. Leave of Absence
A claimant who is replaced while out on a medical leave of absence is discharged, but not for misconduct or gross misconduct. Vathes v. Wareheim Air Brakes, Inc., 366-SE-87.
Upon returning from a leave of absence requested by the employer, the claimant was handed a letter of resignation and asked to sign it. The claimant signed the letter because he knew that if he did not sign it, he would be fired. The employer proved no misconduct of any kind on the claimant's part. The claimant had no intent to resign. The claimant was discharged, but not for any misconduct or gross misconduct. Cox v. B. Green and Company, Inc., 957-BH-89.
Being placed on an involuntary, unpaid leave of absence due to a medical disability is the full equivalent of a discharge, for unemployment insurance purposes. Tillery v. Maryland News Distribution Company, 812-BR-92.
The claimant was on medical leave. The employer scheduled her for work, but the claimant had never given the employer a return to work slip from her doctor. The employer’s scheduling the claimant was both premature and not communicated to the claimant. The claimant did not report as scheduled because she did not know she was scheduled. The Board, citing Vathes v. Wareheim Air Brakes, Inc., 366-SE-87, held that a claimant who is replaced while out on a medical leave of absence is discharged, but not for misconduct or gross misconduct. Lee v. Target Division of Dayton Hudson, 624-BR-11.
The claimant was absent from work due to a work-related injury. The claimant kept her employer advised of her need to be off work. The employer made the decision to discharge the claimant while she was out on sick leave and awaiting approval from the employer to see a specialist. The Board held that the claimant was discharged, but not for gross misconduct or misconduct. Nicey v. Safeway, Inc., 3106-BH-12.
The claimant was out on an approved family medical leave due to a serious back problem. She started the leave on February 6, 2012 and it was exhausted on May 8, 2012. The employer expected her to return at that time, but the claimant was not able to return because she had just been referred to a specialist. The employer, when informed that the claimant was not able to return, terminated her employment. Because the employer initiated the separation, this was a discharge. The employer was not present at the hearing and presented no evidence of any act or omission by the claimant which could constitute gross or simple misconduct. The discharge letter only cites a claimant’s failure to return to work at the expiration of her medical leave as the reason for termination. Such a reason is not disqualifying misconduct under Maryland Law. Hawkins v. AFP Logistics and Service LLC, 5073-BR-12.
The claimant was injured at work when she fell and landed on her left hip. The claimant was medically restricted to light-duty work. The Employer did not have light-duty work available for the claimant at the time her short-term disability leave expired. The employer initiated the separation for this reason. This was a discharge. The reason for separation was not the result of any act or omission by the claimant. The claimant was terminated due to lack of available work, similar to a layoff. No disqualification should be assessed under the circumstances. Blankenship v. AGCO Corporation, 5286-BR-12.
D. Discharge from a Temporary Agency
The claimant signed up with a temporary agency because it was the only way to obtain a long-term job. The claimant in fact was referred by the temporary agency to a clerk-typist position which she held for four years, until she was discharged through no fault of her own. Since the claimant's original intent was not to obtain temporary work and since the other positions offered by the temporary agency were not substantially equivalent to the prior long-term job, the claimant did not voluntarily separate herself from the temporary agency. The claimant was discharged but not for misconduct. Davis v. Marge Fox Personnel Services, 576-BR-89.
The claimant worked for a temporary agency from November 6, 1989 to November 22, 1989, at which time the assignment ended. The employer attempted to call the claimant with an offer of a new assignment, but was unable to personally contact her. The claimant was discharged from her employment. She became unemployed when her temporary assignment ended on November 22, 1989. No disqualification was imposed. Robinson v. SES Temps, Inc., 384-BR-90.
The claimant worked for a temporary agency from October 20, 1989 to October 26, 1989 when the assignment ended because the claimant was no longer wanted on the job due to productivity problems. The temporary agency offered the claimant another assignment on October 30, 1989, however, the claimant refused. A claimant who works for a temporary agency does not voluntarily quit his job when he refuses an assignment of work. In this case, the claimant's employment ended due to a lack of work or other reason not related to the claimant's misconduct and no disqualification was imposed. Leitzel v. Select Temporary Services, 493-BR-90.
The employer is a temporary help firm. At the time of hire, the employer provided the claimant with a name of the person he could contact if a problem arose at the job site. On January 7, 2012, the employer assigned the claimant to work for a client. On February 1, 2012, during the claimant’s shift, he turned in his identification badge and walked off the job site. The claimant did not return to work. The employer’s policy states that when an employee walks off the job, the employee is subject to immediate termination without eligibility to be rehired. The claimant left the job site because he felt he was being harassed by the on-site supervisor. He complained and the client met to try to resolve the problems. The claimant did not contact the employer when he believed the harassment was continuing. The Board found that the claimant quit his position with the employer’s client, but did not sever the employment relationship with the actual employer. As a result of the manner in which he quit the assignment, the employer discharged him from further employment assignments. The claimant did not take the appropriate steps to preserve his employment. He failed to take any remedial action or otherwise notify the employer of the problems he believed were occurring at work. That was either a deliberate, or grossly negligent, disregard for the employer’s interests and expectations. As such, the discharge was for gross misconduct. Ingegno v. Reliance Aerotech Services, 3465-BR-12.
The claimant worked for a temporary help firm. The claimant had been warned by the employer about being late to work for the client. Eventually, the client requested to replace the claimant due to the continuing lateness. The employer did not have anything available to which the claimant could be referred, but the claimant remained on the employer’s rolls. The employer had no intention of severing the employment relationship and would have placed the claimant in another assignment if there had been one available. Because there was no other assignment, the claimant was effectively laid off due to lack of work. The layoff due to lack of work is a non-disqualifying separation. Franklin v. The Aspen Group, Inc., 3468-BR-12.
The employer is a temporary help firm and the claimant was on a timeporary-to-permanent assignment with a client. He was no call/no show on March 14 and 17, 2014. After he was a no call/no show on April 22 and 24, 2014, the client requested that he be removed from the assignment. The employer did not discharge the claimant from its employ, although the employer would have been unlikely to place the claimant in another assignment because of his apparent attendance problems. The employment relationship is between the claimant and the employer. The client company is a third party, for whom the employer provides personnel. The employer’s client may ask the claimant to be removed from an assignment. This, however, is not a discharge from employment. A claimant may decide to cease working for the employer’s client, and request another assignment. This is not necessarily a voluntary quit. It is only the cessation of one assignment. The claimant remains employed unless the employer, or the claimant, severs the actual employment relationship. The Board concludes that the claimant’s unemployment was due to lack of work and not for any disqualifying reason. Anderson v. Augmentation, Inc., 3001-BR-14.
II. Misconduct or Gross Misconduct?
Section 8-1002 defines gross misconduct as (i) a deliberate and willful disregard of standards of behavior that an employer has the right to expect and that shows gross indifference to the employer's interests; or (ii) repeated violations of employment rules that prove a regular and wanton disregard of the employee's obligations. Misconduct that does not fall within the above definition is not gross misconduct. The definition above also does not include aggravated misconduct.
As stated in Department of Economic & Empl. Dev. v. Jones, 79 Md. App. 531, 535-536, 558 A.2d 739 (1989), "There are no hard and fast rules to determine what constitutes deliberate and willful misconduct." In Employment Security Board v. LeCates, 218 Md. 202, 145 A.2d 840 (1958), the Court of Appeals noted that such a determination "will vary with each particular case." The Court went on to state: "Here we 'are not looking simply for substandard conduct * * * but for a willful or wanton state of mind accompanying the engaging in substandard conduct. * * * [T]he wrongness of the conduct must be judged in the particular employment context. * * * [C]ertain conduct will be so flagrant that indulging in it will undoubtedly be misconduct whether or not a specific rule prohibiting it has been expressly formulated and posted or otherwise announced to the employees.'" 218 Md. at 208, 145 A.2d. at 844, quoting Sanders, Disqualification for Unemployment Insurance, 8 V and. L.Rev. 307, 334 (1955). The Court concluded that where the claimant's conduct evinced an utter disregard of an employee's duties and obligations to the employer and was calculated to disrupt the discipline and order requisite to the proper management of a company, a finding of gross misconduct is supported.
The term "misconduct" (other than gross) is undefined in the statute. Allen v. CORE Target City Youth Program, 275 Md. 69, 338 A.2d 237 (1975). The Court of Appeals stated a standard for misconduct as follows: " . . . a transgression of some established rule or policy of the employer, the commission of a forbidden act, a dereliction of duty, or a course of wrongful conduct committed by an employee, within the scope of his employment relationship, during hours of employment or on the employer's premises." Rogers v. Radio Shack, 271 Md. 126, 314 A.2d 113 (1974).
Conduct or acts not considered serious enough to be gross misconduct may be misconduct. However, the term "misconduct" was not intended to include trivial or inconsequential acts or comments or isolated lapses in the employee's performance.
A. In General
Termination or layoff due to a lack of work or job abolishment is a discharge, but not for misconduct. Stevens v. Harford County Schools, 13-BR-82.
A claimant's misconduct is not mitigated by the alleged fact that others also committed misconduct. Griffith v. State Employees' Credit Union, 374-SE-92.
Where an employer discharges a claimant for a variety of actions alleged to constitute misconduct, but where some of these actions were not proven or cannot be considered as misconduct, the remaining actions should be considered, and if they amount to misconduct, the claimant was discharged for misconduct. Edmonds v. Anne Arundel County Government, 1476-BH-92.
Even though a claimant is discharged in the heat of anger, the reasons for the discharge, if they can be articulated, should be examined to determine whether they amount to misconduct. Allen v. Sentinel Newspapers, 155-BR-93.
The employer did not have sufficient work for the claimant. Initially, the claimant’s hours were reduced. Then the employer instructed the claimant to wait for its call to return to work. The logical conclusion from this series of events is that the claimant was laid off due to a lack of work. Such a lay-off is a discharge and is for a non-disqualifying reason. The employer has not met its burden of showing that the discharge was for misconduct. Carruth v. Clark’s Glass & Shade, Inc., 4920-BR-11.
The claimant and employer agreed to a “working interview.” The claimant would work for the employer for three days while each decided if an employment relationship would be feasible. The employer agreed to pay the claimant for this period of time but made no job offer. At the end of the three-day period, the employer chose not to make a job offer because the claimant did not have the certification the employer preferred. The employment was of limited duration by its own terms. The job ended of its own accord and not because of some action by the claimant. As such, this was a discharge. Because the employment ended at a specified, pre-arranged time, there was no additional work for the claimant. The situation is comparable to a lay-off due to a lack of work. The Board held that the employer has not met its burden of demonstrating that the claimant’s actions rose to the level of misconduct or gross misconduct. Singleton v. Anahita Abdehou DDS PC, 6075-BR-11.
The claimant worked full-time as a cash manager, earning $16.54 per hour. The employer told the claimant that her position was being eliminated. The employer offered the claimant a choice of two positions at the same hours, distance and pay. The claimant decided not to accept either position. The Board held that the claimant did not voluntarily leave her position. The employer eliminated the claimant’s position, thus, effectively discharging the claimant. The claimant was discharged, but for no misconduct. Wood v. Three Lower Counties Community Services, Inc., 2885-BR-11.
The claimant and employer entered into an agreement that the claimant would provide therapeutic counseling services for clients of the employer for a period of one year. The claimant worked slightly more than one year in order to accommodate the needs of her last client. When a separation occurs because of the agreement between the parties, it is generally considered analogous to a layoff for a lack of work. A layoff is a discharge for non-disqualifying reasons. The claimant’s employment with this employer ended of its own terms and was a discharge. Whether or not the claimant was an independent contractor does not impact upon the issue of employer. Molina-Marshall v. Crawford Consulting and Mental Health Services Inc., 5969-BR-12.
The claimant worked in the employer’s Hagerstown store. Her fiancé was transferring to a job in North Myrtle Beach, South Carolina. The claimant went to her store management and inquired about transferring to a location in the Myrtle Beach, South Carolina area. The employer assured the claimant a transfer was available and would be processed. When the claimant reported to the North Myrtle Beach store, there was no job for her. The Board concluded that the employer discharged the claimant when the employer did not have work for her at the North Myrtle store location. The claimant never quit her employment, but left the Hagerstown location believing she had a job waiting in North Myrtle Beach. The claimant was separated from this employment by the employer because they did not have a position for her, even though she had been assured she would continue to be employed. The Board concluded the claimant was separated from her employment due to lack of work. This was therefore, a non-disqualifying separation. Hildebrand v. Home Depot USA, Inc., 2978-BR-14.
B. Intent or Willfulness
1. Gross Misconduct Found
Absent medical evidence to support the claimant's allegations that his excessive tardiness was the result of a mental or emotional illness beyond his control, and in light of the claimant's contradictory testimony that he suffered from no illness which affected his work performance, a finding of gross misconduct is supported. Johnson v. Baltimore City Health Department, 1031-BH-85.
The claimant, a phlebotomist, was aggressive, not easy to get along with and constantly argued with coworkers. The employer met with her about this, added an additional room where the claimant could work, separately from the other phlebotomist. The problems continued and the claimant was transferred to a different location. The claimant’s behavior did not improve. There was a final event when the claimant engaged in a verbal argument with the patient’s mother rather than walk away from the situation. At the termination meeting, the claimant got into her supervisor’s face and started yelling after she was told she would be terminated. The Board held that the weight of the credible evidence showed that the claimant continued her unacceptable behavior with coworkers and patients after warning and counseling. The claimant showed a willful and wanton disregard of her obligations and showed a gross indifference to the employer’s interests, constituting gross misconduct. Baxter v. Laboratory Corporation of America, 4649-BR-12.
2. Misconduct Found
The claimant bypassed one part of her duties, resulting in a customer's premises being unprotected by the alarm system for one night. This was misconduct. Without sufficient evidence of a willful and wanton disregard of her obligations or a gross indifference to the employer's interest, there can be no finding of gross misconduct. Lehman v. Baker Protective Services, Inc., 221-BR-89.
Where the claimant's continued lateness, in the face of warnings, was due to the needs of her child, who suffered from mental retardation, the claimant did not have the requisite willful intent or disregard for the employer's needs to support a finding a gross misconduct. However, since the claimant regularly violated the employer's attendance policy, her actions rose to the level of simple misconduct. Bush v. Becton Dickinson and Company, 2084-BR-94.
The claimant worked for this employer for two days, March 4 and 7, 2013. The claimant was told she should call the assistant manager or other managers to find out her upcoming schedule. The schedule was also posted in the store. From March 11, 2013 through March 21, 2013, the claimant made repeated calls asking to speak to the assistant manager about her schedule, but did not speak to her and left messages with an unidentified employee. Consequently, she did not learn her schedule and did not report for work. The assistant manager did not hear from the claimant until April 11, 2013. The Board found that the employer initiated the separation upon its conclusion that the claimant had abandoned her employment. Because the employer initiated the separation, it was a discharge. Because the claimant made several attempts to ascertain her work schedule, the Board cannot find that she was discharged for gross misconduct. However, the claimant did not take the next logical or reasonable steps. She did not ask the person she spoke to at the employer’s facility to check the schedule for her. She did not go to the store and check it herself. Because she did not, she was in breach of her duty to the employer and for this reason her discharge was for simple misconduct. Meloche v. Safeway, Inc., 4279-BR-13.
The claimant failed to report to work in the absence of approved leave. The Board does not concur that the claimant’s actions were a deliberate and willful disregard of the standards the employer had a right to expect or that the claimant’s actions evinced a gross disregard to the employer’s interests. Therefore, a finding of gross misconduct is not supported. However, the claimant, by his own admission, failed to report to work without approved leave. A finding of simple misconduct is supported. Trice v. Wal-Mart, Inc., 1029-BR-15.
The claimant was discharged for not calling out from work for two days while he was out due to an injury. He had told his supervisor that he would not be able to work for a few days, but he was still supposed to call the call-out line to inform the employer he was not able to come to work. He did not intend to miss work without informing the employer. He just felt that telling his supervisor was sufficient to put the employer on notice that he was not able to come to work. The Board found that because the claimant lacked the intent to violate the employer’s policy, a conclusion that he deliberately and willfully disregarded the standards of the employer cannot be sustained. The Board concluded that the claimant was discharged for simple misconduct due to a transgression of an established rule or policy of the employer, the commission of a forbidden act, or a dereliction from duty. Whitfield v. Schmidt Baking Company, Inc., 732-BR-15.
3. No Misconduct Found
The claimant was discharged for bizarre, loud and aggressive behavior which was a side effect of legally prescribed drugs. The claimant provided medical documentation that the drugs could have been primarily responsible for the behavior leading directly to her discharge. No misconduct was found. Day v. Sinai Hospital of Baltimore, 540-BH-85.
The claimant was employed as a security guard for the Mass Transit Authority. She was arrested and unable to report to work. She notified the employer that she could not report to work for personal reasons. She was discharged due to her failure to inform the employer that she had been arrested. The employer required that members of its police force inform the employer immediately if they are arrested. The claimant was not a police officer. She reasonably believed that the rules regarding the police force did not apply to her. The claimant was later acquitted of all charges. The claimant's belief that she was not required to inform the employer of her arrest was reasonable, and her failure to do so does not amount to misconduct or gross misconduct. Gilbert v. Mass Transit Administration, 654-BH-91.
Allegations of sexual harassment in the workplace are extremely serious. However in this case, the claimant, who denied the activity for which he was discharged, was found to have been discharged but not for gross misconduct or misconduct connected with the work. The employer failed to meet its burden of proof by not presenting witnesses or "victim" testimony which would support the elements of either "misconduct" or "gross misconduct". Ingram v. Laurel Fitness & Swim Club, Inc., 02290-BR-96.
The employer felt the claimant should have been much faster at performing his duties and that the claimant made too many errors, which caused customers to bring back vehicles for additional repairs. Also, the employer thought the claimant was not generating enough billable hours. However, the employer thought the claimant was working to the best of his ability most of the time, but simply did not have sufficient skills to perform up to the employer’s expectations. After he told the claimant that things were “not working out” he offered the claimant the chance to work until the end of the week. The Board held that it was not logical to assert that a worker committed misconduct and at the same time offer that worker the opportunity to stay several more days. The Board held there was no misconduct. Kirby v. Chesapeake Service Center LLC, 862-BR-11.
The claimant did not quit. He was sent home by his supervisor on a suspension, but not given paperwork or a return-to-work date. The claimant went home as instructed and waited for the employer to contact him to return to work. The claimant’s actions were reasonable under the circumstances and do not evince any intent to abandon his employment. The employer chose to discharge him for his two-day absence, but did not show that the claimant acted with any disregard, carelessness or negligence with respect to the employer. The Board held there was no misconduct. Briandt v. Flippo Construction Company, Inc., 169-BR-11.
The claimant was employed as a senior teller. She was discharged for allegedly leaving cash unsecured and for not adequately protecting confidential and proprietary information. The claimant was overwhelmed with performing her job as there was insufficient assistance available. The claimant was not at all times able to adequately fulfill multiple job tasks at once. When the claimant had to leave her work station, she sufficiently complied with all work rules or she did so with her supervisor’s informed permission. The claimant worked to the best of her ability. The Board found there was insufficient evidence that the claimant’s actions constituted a violation of work place rules, a course of wrongful conduct or the commission of a forbidden act. There is insufficient evidence that the claimant’s actions were deliberate, willful or made with a gross disregard to her employer’s interests. The Board held that the claimant was discharged, but not for misconduct or gross misconduct. Colom v. Bank of America, 5736-BH-12.
The claimant worked for the employer as a general manager. The claimant had a second job which was in violation of the employer’s policy. The claimant did not know this policy prior to the meeting at which she was terminated from employment. The employer discharged her because of her refusal to leave her other, part-time employment. The Board found that the evidence did not show that the claimant knew or should have known that this second position violated the employer’s policy. Therefore, the Board cannot find that the claimant acted with any disregard for the employer’s interests or expectations and she did not knowingly breach her duty to the employer or violate any employment rules. There was insufficient evidence to establish the claimant was discharged for any disqualifying reason. Ohl v. Pizza Hut of Maryland, 447-BR-13.
C. Misunderstandings
The claimant did not refuse to perform an assignment, but merely asked for assistance. The employer misunderstood and discharged the claimant for refusing to work. There was no misconduct. Duncan v. Grossman's, Inc., 661-BR-88.
The claimant was discharged because he allegedly took an unauthorized vacation. However, at the time the claimant took off from work, he honestly believed that he was on an authorized vacation leave. He had accumulated vacation leave and his belief that his vacation was authorized was reasonable. The misunderstanding between the claimant and the employer was due to a miscommunication. The claimant's actions did not amount to misconduct or gross misconduct. Sims v. Red Roof Inns, Inc., 655-BH-91.
Prior to his hiring, the claimant had an agreement with the employer that he would take a leave of absence to attend to his deceased uncle’s affairs in Africa. The claimant told the employer he would be gone a month. The employer believed that the claimant would return to work in three weeks, on May 24, 2010. The claimant showed up for work on June 2, 2010, believing that this was the date that he and the employer agreed upon. The employer had replaced the claimant when he didn’t return on May 24. The misunderstanding between the claimant and employer was due to miscommunication. The claimant’s actions did not amount to misconduct or gross misconduct. Oduro v. Consolidated Building Maintenance LLC, 10-BR-11.
The claimant was discharged for reporting 2% greater commission than that to which he was entitled on one sale. The report showing this commission was sent to the employer’s accounting office without the claimant having reviewed it. The Board found that the claimant reasonably and honestly believed he was entitled to claim the additional 2% commission on the sale in question. Even if he had reviewed the commission report prior to its admission, he would have had no reason to make any changes. The Board does not consider the claimant’s actions in this matter to have been indicative of misconduct. Rather, the claimant acted on a reasonable, but mistaken, belief that what he did was correct. Such a mistake is not a disqualifying reason for a discharge. Galdo v. Mattress Warehouse, Inc., 4368-BR-12.
The claimant had one unexcused absence without notice. The claimant believed another employee was covering that shift, so he did not think there was any need to notify the employer of the absence. This was simply a misunderstanding between two supervisory employees. The evidence did not show the claimant was derelict in his duty to the employer. The claimant did not have a history of missing work or otherwise failing to comply with the employer’s expectations. This was a singular act, and while it was careless, it was not misconduct. Parker v. Hearn Kirkwood, Inc., 6116-BR-12.
D. Isolated Incidents
The claimant's one mistake, which occurred after he had worked only 31 days, was not misconduct. An instantaneous lapse in the performance of job duties does not constitute misconduct. Proctor v. Atlas Pontiac, 144-BR-87.
The claimant waitress was discharged after she misunderstood the owner's instruction to her on one occasion. The owner told the claimant to provide certain customers with free after-dinner drinks. The claimant misunderstood and did not charge the customers for their before-dinner drinks. When the other owner discovered this, he discharged her. This one slight lapse in the claimant's performance is insufficient to support a finding of misconduct. Gilbert v. Polo Grill, 192-BH-91.
A single, isolated incident of failing to report to work and failing to notify the employer of the absence does not rise to the level of misconduct. The claimant unintentionally overslept. She could not call the employer because she did not have telephone service available to her. Even if she could have called, she would have been in violation of the employer’s policy which requires a three-hour notice of intended absence. The claimant’s prior warning for attendance issues concerned what the employer classified as excessive absences and were unrelated to this incident. The Board held there was no misconduct or gross misconduct. McCray v. Johns Hopkins Medical Management Corporation, 6063-BR-11.
A single, isolated incident of the claimant’s use of inappropriate language in the work place, to a coworker, does not rise to the level of misconduct. Ford v. Signature Payroll Services LLC, 1682-BR-11.
The claimant was discharged for the use of a curse word on February 14, 2011. While a single violation of a work policy may constitute misconduct, to sustain findings of misconduct on the basis of a single act, the employer must show that the claimant’s behavior was more than a misunderstanding and was unreasonable under the circumstances. The employer did not attend the hearing and did not demonstrate that the claimant’s action was more than an isolated incident. The Board held there was no misconduct. Elliott v. Mass Transit Administration, 3623-BR-11.
The Board found that a single, isolated incident of having an unexplained cash shortage of $40.00 on September 23, 2010, does not rise to the level of misconduct. The claimant did not have a history of cash handling problems, although she had received on warning in April 2008. The Board found this incident too remote in time to support a finding that the claimant was repeatedly careless or negligent in performing her duties. Mayo v. Pizza Hut of Maryland, Inc., 1149-BR-11.
The claimant was employed well over two years with the employer and had never been absent. The claimant called 2.5 hours prior to his scheduled shift and reported that he would not be coming to work because he was sick. Although this was against the employer’s policy, this procedure was condoned by the claimant’s supervisor on previous occasions. The claimant received a text message from his supervisor which stated that if the claimant did not arrive for his scheduled shift, the supervisor would have no choice but to fire him. The claimant did not report to work because of his illness and believed that he was discharged because he did not show up. Neither the employer not the claimant contacted each other after that. The Board finds that this was a discharge and that this single isolated incident of not showing up to work does not rise to the level of misconduct. Sandoe v. Park Place Operating, Inc., 431-BR-12.
The employer’s policy states that a supervisor may not leave the store premises during business hours without another supervisor present. The claimant, an assistant store manager, was discharged after he left the store for a few minutes to take out the trash, while two subordinates remained in the store. The Board agrees that the employer’s policy was overbroad. Literally read, no manager or supervisor would ever be able to use the restroom unless another supervisor or manager was present. The Board does not believe that was the intent of the employer’s policy. The claimant’s action may have been a technical violation of the employer’s policy, but he did not exhibit any action or omission which can constitute misconduct or gross misconduct. This was an isolated occurrence. Kaufman v. Gamestop, Inc., 2609-BR-12.
The claimant had worked for many years for the various companies which served the contract. The claimant may have been a new hire to the current employer, but her probationary status was irrelevant. The proper question was whether the claimant’s act or omission was misconduct or gross misconduct. The claimant was five minutes late returning from lunch. This was an isolated incident. The employer did not prove any pattern of behavior, or any willful disregard for its expectations. The employer did not establish that the claimant had been warned about similar past acts. He employer may have had the right to discharge the claimant for this one incident, but that does not automatically elevate it to the level necessary to support a benefit disqualification or penalty. The Board found that this single isolated incident of returning late from her lunch break does not rise to the level of misconduct. Barnes v. Diversified Service Contracting, 2930-BR-12.
The claimant answered a call from his dispatcher on his Nextel radio. That conversation was very brief, but the claimant did not pull to the side of the road as the employer required. The claimant had no history of using his cell phone or his Nextel radio while driving. This was a singular error in judgement. The Board finds that this single isolated incident of answering his Nextel radio without pulling over to the side of the road does not rise to the level of misconduct. Bimbai v. Challenger Transportation, Inc., 5029-BR-12.
The claimant worked as a shelter supervisor/monitor at the employer’s adult diagnostic center. The claimant observed that the patient had a bottle of alcohol. As instructed, she retrieved the alcohol, presented it to a supervising nurse, at which time the nurse wrote something down. The claimant then returned to her duties. A short time after that, the patient fell, but was caught by another employee prior to hitting the floor. The claimant was not the only individual in charge of supervising the patients at that time. The claimant was discharged because of this single incident. She never received prior warnings. The Board held that this single, isolated incident of failing to adequately supervise a patient does not rise to the level of misconduct. Legins v. Baltimore Behavioral Health, Inc., 5993-BR-12.
The claimant and a coworker verbally argued for less than a minute. There was nothing physical about the altercation and no threats were made or implied. Neither the claimant nor his coworker did anything beyond speak loudly to each other. No customers were in the store and no other employees were involved. There was no evidence that this was part of a course of conduct by the claimant. The Board finds that this single isolated incident of engaging in an argument with a coworker does not rise to the level of misconduct. Thomas v. Target Division of Dayton Hudson, 1876-BR-13.
The claimant was discharged for using her cell phone on one isolated occasion in the employer’s building when it rained on May 14, 2012. The claimant used poor judgement when she used the cell phone inside the employer’s building in violation of the work place rule. She spoke on the cell phone with her daughter to authorize repairs to her vehicle which had broken down. The Board finds the exceptional circumstances under which the claimant used the cell phone mitigating. The employer did not sufficiently demonstrate that the claimant’s actions were more than a mere isolated incident. The Board held there was no misconduct. Ngugi-Maina v. Baltimore Heart Associates PA, 1124-BR-13.
The claimant made errors in manually entering billing information on an invoice nearly a year before. When the employer discovered this, the claimant was discharged. The error cost the employer $1,000.00 and could have caused the employer to lose one of its biggest accounts. The claimant received no previous warnings. The Board does not find that this error by the claimant was more than an isolated incident. There was no showing that the claimant was careless or negligent. The Board concludes that the claimant’s discharge for this reason was not for any disqualifying misconduct under the law. Chaney v. Hospitality Development Company I LLC, 2692-BR-14.
On November 7, 2013, the foreman sent the claimant home early due to rain. The foreman told the claimant that he would call him that evening at around 6:00 p.m. to let him know about work the following day. The claimant never received a call from the foreman that evening. Normally, the claimant was supposed to report to work at 7:00 a.m. On November 8, 2013 at 7:10 a.m., the foreman called him, asking the claimant where he was. The claimant told the foreman that he had not received a call from the foreman, did not prepare himself to work that day and would not be coming in. Subsequently, the employer told the claimant he was discharged. The claimant was discharged for a single occurrence. The employer did not demonstrate that the claimant’s actions were more than an isolated incident of ordinary negligence or a lapse in judgment. The Board held there was no misconduct. Chavey-Castro v. CIP Concrete LLC, 1675-BR-14.
The employer’s policy required that the claimant promptly report an accident while operating his bus. On July 12, 2013, the claimant was operating his bus and struck another bus. The incident did not result in damage to either bus or injuries to anyone. The claimant incorrectly believed that he did not need to report the accident because there was no injury and no property damage. The accident was minor in nature. The claimant was otherwise a good employee with no prior disciplinary history. The claimant was discharged for this single incident. The Board finds insufficient evidence that the claimant’s misjudgment of not reporting minor contact with another bus when there was no property damage and no injuries was more than a lapse of judgment. The Board held there was no misconduct. Saulsbury v. First Transit, Inc., 45-BR-15.
E. Trivial or Inconsequential Act or Comment
The claimant's non-disruptive expression of displeasure with the working conditions is not misconduct. Forest v. Tys, Inc., 452-BR-89.
The claimant truck driver was angry with the employer and made an offhand remark to another driver that he felt like leaving the truck in Connecticut and going home. The claimant did not mean this remark as a serious threat, nor was it made to the employer. The claimant did not abandon his truck, but when he reported back to work, he was terminated. The claimant's discharge was not for any misconduct. Baker v. Quality Suppliers, 1600-BR-93.
F. Cumulative Effect of Incidents
The claimant resigned in lieu of discharge during an extended probationary period. The claimant's attendance and job performance were poor, and she had a bad attitude. She failed to properly notify the employer of absences, reported late for work and incurred incidents of leave without pay. Additionally, the claimant failed to maintain work schedules and files and failed to proofread her correspondence before sending it out. When she failed to improve during her extended probationary period, she was asked to resign. The claimant was discharged for gross misconduct. Chavis v. Walter P. Carter Center, 767-BH-89.
The claimant was discharged due to his continued practice of arriving late and leaving early, combined with his failure to follow proper procedures and his taking of an unauthorized vacation. This was gross misconduct. Nims v. Bay Fence Company, Inc., 958-BH-89.
The claimant failed to perform the primary duty for which she was hired. She continued to make and receive personal calls even after receiving warnings about this. She made long-distance calls for which she did not reimburse the employer. She was unproductive and made a lot of errors. She was also excessively tardy and absent. The claimant was discharged for gross misconduct. Murphy v. Loiederman Associates, Inc., 4-BR-90.
The claimant had a history of not complying with the employer’s requests concerning his attire, his job performance, his cooperation or his care for the employer’s equipment. He was warned on multiple occasions about these infractions, but neither his performance nor his attitude improved. His discharge was for gross misconduct. Albrittain v. WTL, Inc., 3698-BR-11.
G. Effect of Warnings and Condonation
1. Warnings
The claimant was discharged because she was allegedly harassing other employees and also because she discussed personal matters with customers. There is insufficient evidence of the first allegation. With respect to the second allegation, the claimant was encouraged to talk in a friendly manner with customers, however, talking about extremely personal matters was inappropriate. This could be misconduct in some situations, however, it is clear that in this case, the claimant was never specifically warned about this. Since the claimant was not told to stop doing this, her actions were not misconduct. Tates v. Robin George Davidson, 881-BH-91.
For unemployment insurance law purposes, it is not relevant whether the claimant was owed more warnings prior to discharge under the technicalities of the employer's discharge procedures. Oakley v. Progress Unlimited, Inc., 394-BR-92.
The claimant was discharged for the accumulation of three warnings under the employer’s progressive disciplinary system. While that may serve to establish a basis for the employer’s decision to discharge the claimant, it does not, of itself, demonstrate misconduct. The underlying reason for the termination is what will determine whether misconduct or gross misconduct was the reason for the discharge. With respect to the first warning, it should be disregarded because the claimant had been given permission to do her laundry at work prior to being spoken to by her shift lead. The third incident on May 20, 2012 should be disregarded because the employer’s witness was not present at the time of a phone call where the claimant was allegedly rude. The only evidence about this was hearsay. With respect to the incident on May 1, 2012, when the claimant left three clients unattended for a brief period of time, contrary to the employer’s requirements, the Board is of the opinion that if the employer had believed this to be such an egregious act, the discharge logically would have been immediate. The Board cannot find that this event warrants a finding of gross misconduct. The Board held the discharge was not for gross misconduct. Henry v. Maple Shape Youth & Family Services, Inc., 89-BR-13.
2. Condonation
The claimant missed a great deal of time from work due to personal problems, and the employer acquiesced to these absences. The claimant was later discharged for excessive absenteeism. Since the employer acquiesced to the claimant's conduct, it cannot be considered simple or gross misconduct within the meaning of Sections 8-1002 or 8-1003. Cortez v. American Cooperage and Steel Drum, 765-BH-84.
The employer repeatedly warned the claimant about his absenteeism, lateness and failure to properly request leave. Repeated warnings over a long period of time are the opposite of condonation. Washington v. Montgomery County Public Schools, 774-BR-92.
The claimant worked for the employer for 14 months without a handgun permit which was a condition of employment. When the permit was denied because of an offense which had occurred in another state ten years earlier, the employer discharged the claimant. In noting that the employer allowed the claimant to perform services for fourteen months without the gun permit, the Board found that the circumstances were tantamount to condonation by the employer and that misconduct was not supported. Stevenson v. Dunbar Armored Inc., 2189-BR-07.
The claimant was employed for three years. The claimant lived 50 miles away from the employer. The claimant had to travel in heavily congested areas and was often late to work, even if he allowed time for heavy traffic. His immediate supervisor acquiesced to the late arrivals, but the supervisor was retiring and the claimant was told by the new supervisor that he would not tolerate the claimant arriving late to work. The new supervisor told the claimant that he could resign in lieu of discharge for attendance issues. The claimant chose to resign. The Board held that the claimant was discharged, but not for misconduct. Frager v. Uniformed Services, 3074-BR-12.
The claimant was discharged for using the employer’s vehicle to run personal errands with his young child on board. The claimant may have been in technical violation of the employer’s policy, but the violation had been condoned for a sufficient period so that it no longer had efficacy. The manager knew the claimant was transporting his son to and from school. The manager, effectively, overrode the employer’s policy. Whether the manager had the authority to do this was not the claimant’s responsibility to know. The Board is of the opinion that the claimant reasonably relied upon his manager’s permission to use the work van for personal business. The claimant did not exhibit any degree of misconduct in continuing to do what he had been allowed to do by his manager. Sasse v. Safelite Fulfillment, Inc., 6042-BR-12.
H. Discharge Motivated by Discrimination
The claimant was discharged for the negligent operation of equipment, insubordination toward a supervisor, refusing to follow the supervisor's reasonable instruction, leaving his work station early without permission, and 22 incidents of lateness within a 90-day period. The claimant failed to prove that the reasons for the discharge, though objectively based, were just a pretext for an underlying discriminatory motive. The discharge was for gross misconduct. Anderson v. Chem Clear, Inc., 912-BR-87.