Discharge - Sections 8-1002, 8-1002.1, 8-1003 - Maryland Unemployment Decisions Digest - Appeals

Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued

IX. Attendance Problems

Persistent or chronic absenteeism, where the absences are without notice or excuse and continue in the face of warnings constitutes gross misconduct. Whether an employer may be able to have the absent employee's duties performed by others is not relevant to the misconduct determination. Watkins v. Employment Security Administration, 266 Md. 223, 292 A.2d 653 (1972).

However, an employee's violation of the employer's attendance policy does not automatically result in a finding of misconduct. If the employee is absent for a compelling reason, such as illness, the absence will be considered excused, even if it is counted as unexcused according to the employer's policy. Factors considered in determining whether or not there is misconduct include the number of absences or latenesses, the employer's policy, whether the claimant had a good reason for the absenteeism or lateness, whether the claimant properly notified the employer on each occasion and whether the claimant had been previously warned about this conduct.

Employees who miss a lot of time from work, even for excused reasons, have a "heightened duty" not to miss additional time for unexcused reasons and to conform to the employer's notice requirements.

Absenteeism due to incarceration is generally held to be gross misconduct. However, if the charges which brought about the incarceration were dropped or dismissed or the claimant was found to be not guilty, there may not be a penalty, provided the claimant gave the employer proper notice of the absence.

A. Absenteeism and Lateness

1. In General
A violation of an employer's attendance policy is not misconduct per se where that policy does not distinguish between absences which occurred because of 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.

The claimant's discharge was for simple, but not gross, misconduct where the majority of his absences were excused by the employer. Francis v. Dover Poultry, Inc., 327-BR-86.

The claimant was deliberately five hours late for work because he needed rest. He also failed to notify the employer of his lateness. He had received previous warnings about attendance. This was gross misconduct. Thompson v. Chesapeake Paperboard Company, 445-BR-87.

The claimant failed to report to work or notify the employer of his absence for three consecutive scheduled work days. There was no indication that the claimant was so seriously ill that he could not call the employer during this time. This was gross misconduct. Rhodes v. Mullan Enterprises, Inc., 615-BR-89.

The claimant had attendance problems in the past and was in violation of the employer’s policy. However, with respect to the final incident, the claimant was making a reasonable effort to be timely, but was delayed by a traffic accident over which he had no control. The employer did not have any provision in its policy for excusing absences which may have been for good reasons. Here, the claimant simply exceeded the number of absences the employer was willing to allow and was discharged. The Board found no misconduct or gross misconduct. Creager v. Evapco Inc., 241-BR-11.

The claimant was discharged for excessive tardiness. The employer cited three occurrences in March and April of 2010. Absent payroll or personnel records proving the claimant’s excessive absenteeism, there is no definitive proof that the claimant was discharged for a disqualifying reason. In the face of the claimant’s adamant denial of excessive absenteeism, the employer’s bare assertions and conclusory statements do not meet the burden of proof for gross misconduct or misconduct. Surma v. Maryland Messenger Service, Inc., 3094-BR-11.

The claimant was discharged because she had accumulated disciplinary points in excess of that allowed by the employer. The employer did not give any consideration to the reasons for some of the claimant’s tardiness and did not give consideration to the fact that the claimant used an inappropriate time clock in an effort to not be found tardy. The accumulation of a specified number of disciplinary actions or points is not necessarily evidence of misconduct or gross misconduct. The Board draws a distinction between a discharge which occurs based upon the employer’s progressive disciplinary system and a discharge which occurs based upon an act or omission by the claimant. To be disqualifying, the claimant’s discharge had to have been for misconduct or gross misconduct. The Board does not find that the employer has presented sufficient evidence to support such a finding. Dubose v. Greater Baltimore Medical Center, 1506-BR-12.

The claimant was discharged for exceeding the points allowed under the employer’s attendance point system. The last several points were assessed when the claimant no longer had his own transportation and was, through no fault of his own, no longer able to ride with a coworker. The claimant relied on public transportation and as a consequence, was sometimes late to work. In the final incident, he notified the employer of lateness due to transportation issues, but called later than the employer preferred. A discharge like the claimant’s, which occurs when an employee exceeds a certain number of points, is not necessarily a discharge for a disqualifying reason. The employer still has the burden to prove the claimant’s actions or omissions were either gross or simple misconduct. The employer did not appear at the hearing and did not offer any evidence into the record. The employer therefore did not establish that the claimant was discharged for any disqualifying reason. Williams v. Eby Brown Company LLC, 2290-BR-12.

The claimant was discharged for excessive absenteeism. He exceeded the employer’s point allowance, even though the employer treated him leniently in this regard. The employer certainly had the right to discharge the claimant for this reason. However, those facts do not necessarily establish that the claimant’s discharge was for misconduct. Misconduct is defined by the acts or omissions of the claimant; it is not defined by the employer’s policies. Here, the majority of the claimant’s absences were related to an on-the job injury from which he had been released to work, but still had recurring pain and could not receive any helpful treatment. The claimant’s absences were not, however, of a nature sufficient to support a finding of gross misconduct or simple misconduct. Coles v. Safeway, Inc., 2316-BR-12.

Upon hire, the claimant disclosed to the employer that she was a single mother of two children and the one of those children had respiratory problems. The employer was accommodating regarding the claimant’s work hours and tardiness in relation to the special needs of her children. If the claimant missed work time, she was able to make up time by not taking lunch, working overtime and working extra hours on Saturdays. On December 5, 2011, the claimant did not call 15 minutes prior to her shift to warn the employer that she would be arriving late. She was absent on December 7, 2011. She could not reach her immediate supervisor, but notified the coworker that she would be absent. The Board found that the claimant committed a technical violation of the employer’s policy, but did no exhibit a gross indifference to the employer’s interests. The claimant was discharged for misconduct. Ellsworth v. Donald B. Rice Tire Company, Inc., 5083-SE-12.

Under the employer’s attendance policy, if an employee accumulates eight points within a 12-month period, the employee is subject to termination. During his last eight months of employment, the claimant accumulated seven absences and one tardy. He was counseled on October 15, 2012 about his point tally, which was close to eight points. The final incident occurred on October 19, 2012. The claimant was on his way to work driving a rental car and was involved in a motor vehicle accident. He called the employer to state that he would have to be absent. The Board found that an employee’s violation of the employer’s attendance polcy does not automatically result in a finding of misconduct. In this case, the claimant had good reason for his absence since he was involved in an accident. The claimant’s discharge was for a non-disqualifying reason. Howard v. FB Harding, Inc., 997-BR-13.

The employer had a “no fault” attendance policy. An absence due to illness was not excused. The claimant had a poor attendance record and had been warned. The claimant knew that one more absence would lead to her discharge. Knowing this, even though she was ill, the claimant reported to work rather than calling out sick. It was the employer’s decision to send the claimant home because they could not risk her exposing their frail and elderly clients to possible illness. The claimant accumulated an occurrence which led to her discharge. The Board found there was no misconduct on the claimant’s part for this occurrence. The Board held the discharge was not for misconduct or gross misconduct. Lintz v. Citizen’s Nursing Home of Harford County, 0-BR-00 (2014).

2. Chronic or Repeated
The claimant's lateness continued despite warnings and the claimant was absent twice without notice. A specific warning regarding termination is not required and a reasonable person should realize that such conduct leads to discharge. This was gross misconduct. Freyman v. Laurel Toyota, Inc., 608-BR-87.

Where the claimant was late only two times in one and one-half years and warned after the first time, forgiven and then discharged after the second time, there was no gross misconduct, but only simple misconduct. May v. Rudy's Patisserie, Inc., 639-BH-87.

Even though a claimant's last absence was with good reason, a finding of gross misconduct is supported where the claimant was discharged for a long record of absenteeism without valid excuse or notice, which persisted after warnings. Hamel v. Coldwater Seafood Corporation, 1227-BR-93.

The fact that an employer is a temporary employment agency and that the claimant's pattern of unexcused absences involved different placements, does not render the entire attendance record irrelevant. The claimant's record, taken as a whole, supports the conclusion that the claimant's discharge was for gross misconduct. Banks v. Staffmax Corporation, Inc., 996-BR-01 (2001).

The claimant had a long pattern of attendance violations. She was absent ten separate days, late on five occasions and left early without authorization on six occasions. Because of her failure to report to work on a consistent basis, the employer discharged her. The discharge was for gross misconduct. Payton v. Board of Education of Baltimore County, 2679-BR-11.

The claimant was not discharged for refusing to sign the new policy or the warning. He was discharged when he made it clear to the employer that he would not make the necessary effort to arrive at work on time in the future. The claimant had a history of lateness and had recently received a third warning for five recent incidents of lateness. The Board held this constituted gross misconduct. Meadows v. Pet Welness Center, 1328-BR-11.

The claimant had received previous warnings regarding her violation of the employer’s attendance policy. The claimant’s behavior continued and she received a one day suspension regarding this matter. The claimant was part of a skeleton night crew over the Thanksgiving holiday. This crew was needed in case of an emergency at the hospital. The claimant did not receive express authorization from a supervisor to leave her shift early. She only told one other employee that she was doing to leave. Her shift was to end at 7:30 a.m. and she left at 4:00 a.m. Her time sheet was submitted to the payroll department showing that she left at 7:30 a.m. The Board held that the claimant was discharged for gross misconduct. D’Antoni v. Johns Hopkins Bayview Medical Center, 2341-BR-12.

The claimant was required to open the business each morning. He was expected to arrive to work 15 minutes prior to the opening time. The claimant arrived at work on many occasions late. In the final incident, the claimant was supposed to arrive at work at 8:45 a.m. to open the store at 9:00 a.m. The claimant arrived at work at 9:16 a.m., causing the employer’s shop to be opened 15 minutes late. The claimant was tardy on many occasions in the face of warning. The finds that the claimant’s conduct constitutes gross misconduct. Diaz v. PB Tune, Incorporated, 5168-BR-12.

The claimant was repeatedly late to work despite warnings. The claimant knew that as a foreman it was imperative that he report to work as scheduled and on time. The claimant was late six times in the three months prior to his discharge. On the sixth occasion, the claimant was specifically warned that any further lateness could lead to his discharge. Just three days after the warning, the claimant was late to work. The fact that the lateness was due to alleged traffic problems is not mitigating. The Board held that the claimant was discharged for gross misconduct. Gibson v. Maxalea Nurseries, Inc., 5296-BR-13.

The claimant was repeatedly late for work. In the past, the employer worked with the claimant to adjust the claimant’s schedule to accommodate his transportation needs. The claimant had received warnings and counseling from his employer regarding his pattern of tardiness. The culminating event was when the claimant overslept and did not report to work on a Saturday. The claimant asserted that his lateness was mitigated by his diabetes condition which caused him not to hear his alarm. However, there was no medical evidence in the record to support the claimant’s assertion. The credible evidence established that the claimant received warnings for his tardiness and did not show for work because he overslept. His behavior demonstrated a willful disregard of the standards that an employer has the right to expect. The Board held the claimant was discharged for gross misconduct. LeCompte v. Sunrise Irrigation Systems, Inc., 4642-BR-13.

The claimant worked as a part-time server in a retirement community. In March 2012, the claimant was given a final written warning for failure to work at his assigned time. In late November through early December 2012, the claimant had four separate occurrences of attendances violations. On two occasions, he failed to notify the employer of absence at least one hour prior to the start of the shift. On two other occasions, he reported to work late. He was subsequently discharged. The Board held this was gross misconduct. The claimant’s behavior showed a deliberate disregard of the standards the employer has a right to expect. The claimant’s position was time-sensitive. At the retirement community, meals are provided at specific times. Attendance violations placed an undue burden on the employer in meeting the food service needs of the residents. Bisasky v. Unidine Corporation, 2286-BR-13.

In February 2012, the employer warned the claimant that he needed to improve his tardiness and be at his desk by 8:30 a.m. In June 2012, the claimant received a written reprimand for his continued tardiness. The claimant stated for the first time that he had a medical reason for his tardiness and provided documentation. The employer changed his start time to 9:00 a.m. The claimant was subsequently late one time due to traffic and one time because he allegedly had to pull over to take a customer call. However, the claimant’s phone records showed that he made two outbound calls that day and there were no inbound calls. The claimant later changed his story about this. He was discharged for continued tardiness. The Board found the employer’s testimony to be more credible. The claimant was discharged for gross misconduct. Antelman v. Alban Tractor Company, Inc., 720-BR-13.

The claimant was a store manager. He was late for work on November 14, 2013. He was also consistently had a messy store with product that was not put away or properly organized. The employer issued the claimant a final warning regarding these issues. On December 5, 2013, the claimant was late for an important meeting with other managers. The vice president and general manager spoke to him about this. The claimant knew or should have known that his employment was at risk due to lateness. In spite of these facts the claimant was again late for work on December 7, 2013. He failed to call in to report that he would be arriving late and did not provide a valid reason for his lateness on December 7, 2013. The Board held that the claimant’s discharge was for gross misconduct. Mabry v. Jason Properties LLC, 991-BR-14.

On September 3, 2013, the claimant received a performance counseling form because she had been late six times since October 28, 2012. The claimant was again late on October 22, 2013. The employer issued another performance counseling form and placed the claimant on suspension until October 24, 2015. The claimant was on notice that any further attendance violations could result in termination. The form clearly stated that she was to return from suspension on October 24, 2013. She did not report to work on October 24, 2013 and was discharged. The claimant continued to violate her employer’s attendance policies after counseling and a suspension. Her behavior demonstrated a gross disregard of the standards that an employer has the right to expect. The discharge was for gross misconduct. Duckett v. Ride Wood Village, Inc., 671-BR-14.

From September 23, 2013 until October 17, 2013, the claimant was late reporting to work more than nine times. Four of those incidents were for more than then minutes. The claimant received warnings in the past regarding his attendance. The Board held that the claimant was discharged for gross misconduct. Johnson v. Revolution Foods, Inc., 1183-BR-14.

From June 2012 to September 2012, the claimant received four warnings because of tardiness reporting to work and reporting late from lunch. In February 2013, the claimant received another warning because he notified the employer less than two hours ahead that he would be unable to work. In October 2013, the claimant received a final warning regarding his lateness issues. He was late the nex day for no valid reason. In nine days, the claimant was late three times. The Board held that the claimant was discharged for gross misconduct. He was well aware that his employment was at risk, but continued to have attendance issues. Wooten v. Revolution Foods, Inc., 1226-BR-14.

The claimant had received three warnings for tardiness and absence and knew he faced termination for additional absences. In the final incident, the claimant was absent four consecutive days due to “car issues.” The claimant may have been able to excused for the first day of his final absences, but not for the next three days. The claimant knew he did not have transportation to work, but did not take any steps to find an alternative. The claimant did not ask any coworkers. He did not try to take a taxi. The claimant concluded he could not afford a taxi even if the distance was less than six miles. He did not spend the money on a taxi, even though that likely would have preserved his employment. He did not take a bus because he would have to walk between two and four miles and did not think he could do this because of back problems. The claimant’s unwillingness to find and utilize an alternative method to get to work, despite his prior attendance warnings, was indicative of gross negligence and contrary to the employer’s interest. The claimant was discharged for gross misconduct. Walsh v. Jason Pharmaceuticals, Inc., 3073-BR-14.

The claimant received verbal warnings and a written warning for 3 to 4 occurances of lateness. He was subsequently late again and was discharged. There was insufficient evidence that the claimant’s actions evinced a “wanton disregard of his obligations to the employer.” However, by the claimant’s own admission, he breached his duty on several occasions to report to work on time. The Board held this was misconduct. Nolan v. GCGC Fair Corporation, 1172-BR-15.

3. Failure to Notify Employer
The claimant's absences and failure to notify the employer were due to the extreme trauma of the claimant's daughter's terminal illness. This was misconduct, but not gross misconduct. Gordon v. Liberty Medical Center, Inc., 800-BH-87.

The claimant, without authorization, did not report to work for four successive scheduled work days. The employer's policy states that three consecutive absences without notification constitutes job abandonment. The claimant's repeated absences without notification were a deliberate violation of the employer's attendance policy and rise to the level of gross misconduct. King v. Wicomico County, Maryland, 4027-BR-94.

The claimant had excessive absences and received three warnings. The claimant’s failure to report to work as scheduled, without notice for three days, constitutes gross misconduct. Wells v. National Park Service, 5334-BR-10.

The claimant failed to report to work or notify the employer of his absence for three consecutive days because he was incarcerated and was allowed only one 30-second phone call. He did contact the employer on the next day after his release and was told he was no longer employed. The claimant clearly did not intend to quit his job. The claimant was discharged. His failure to report to work as scheduled, without notice for three days constitutes gross misconduct. Wallace v. Baltimore Car & Truck Rental, Inc., 1542-BR-11.

On a Friday, the claimant left work early due to illness. She was scheduled to report to work the following Monday and Tuesday, but failed to report and failed to notify the employer of her absence. The claimant had received a previous warning about this and was specifically told to call if she was going to be absent. The claimant was discharged for gross misconduct. Bost v. Saturn Corporation, 643-BH-90.

The claimant was chronically late and absent and on numerous occasions failed to call in or had someone else call in for her. This violated the employer's rule that unless an employee could not call in, that employee must call in personally. Although the claimant may have had severe personal reasons for her continuing absence and lateness, she did not contact the employer in the appropriate manner or contact the employer at all to notify her supervisor of her absence or lateness. This continued after warnings. The claimant refused the employer's offer of a two-week leave of absence so that she could get her personal life in order. The discharge was for gross misconduct. Hall v. Johns Hopkins Hospital, 694-BH-91.

When a claimant, in the face of warning, did not properly justify his final absence with a required doctor's note, he was terminated for actions which evince a total disregard for the standard of behavior that the employer had a right to expect and, thus constitutes gross misconduct. In its decision, the Board stated "When an employee does not report or call into work, a single incident may only constitute simple misconduct. However, the Board views as a grave matter incidents where an employee violates the employer's attendance policies on more than one recent occasion by not calling or reporting into work." Beard v. C.T. Management, 02061-BR-97.

The claimant had a history of attendance problems and had been warned that any further violations of the attendance policy would result in her discharge. After returning from a leave of absence, the claimant was again absent several days without notifying the employer, and failed to provide the employer with any medical documentation. The claimant had a heightened duty to not miss additional time from work and to follow the employer’s policies. There was insufficient mitigating evidence. The Board found gross misconduct. Fletcher v. Shoppers Food Warehouse Corp., 3839-BH-11.

The claimant originally worked full time for the employer. At the claimant’s request, the employer allowed him to work part time on weekends. The claimant failed to report for his Sunday shift on September 26, 2010. He did not call his manager. He failed to contact the employer the following Monday, Tuesday, Wednesday or Thursday. The employer then sent the claimant a termination letter. In most cases, the Board would hold that one isolated incident does not constitute gross misconduct. However, the claimant had a heightened duty to at least notify his employer if he could not be available for his scheduled shift. The claimant had a duty to follow the employer’s policies to the letter. The Board held this was gross misconduct. McTavish v. The Howard County Lube Management Company, Inc. 2533-BR-11.

The claimant left work at lunch without informing her employer and didn’t return. The claimant was well-aware of the employer’s policies and knew it was her duty to call the employer when she was unable to return to work. Given the claimant’s attendance history and previous warnings, her actions constitute gross misconduct. Trumpower v. Acadia Dental Management LLC, 2256-BR-11.

The claimant failed to report to work on September 2, 2011 without prior notice to the employer. The claimant called in several hours after his scheduled start of 7:00 a.m. shift. The claimant was driving home from Pennsylvania and his car broke down. The evidence showed that this final incident was caused by circumstances which were beyond the claimant’s reasonable control and which he could not have anticipated. The claimant contacted the employer as quickly as he was able when he realized he would not be at work on time. The employer may have had prior discussions with the claimant about the claimant missing work, but those situations were different than this unexpected inability to report for work. The Board does not find that the evidence warrants any disqualification from the receipt of benefits. Tresselt v. Rest Haven Cemetery, Inc., 458-BR-12.

The claimant was in the hospital. The claimant’s sister made initial contact with the employer about the claimant’s hospitalization, but did not maintain that contact. Neither did the claimant advise the employer of any continued absence or his anticipated date of return. The claimant was clearly and repeatedly negligent with respect to his employer’s expectations and its interests. The claimant failed to report for work or contact the employer for several of his scheduled days of work. Upon his release, the claimant did not provide any medical documentation to the employer which would show that he was not able to maintain contact with the employer. The employer discharged him for this continued lack of notice of his absences. His discharge, for these repeatedly careless acts in disregard for the employer’s expectations, was for gross misconduct. Attiko v. Rite Aid of Maryland, Inc., 617-BR-12.

The claimant had been warned about reporting of absence and was on probation at the time of the final incident. The claimant knew or should have known whom he was required to call when he could not appear for work as scheduled. His testimony that the branch manager’s line was busy when he tried to call her does not explain why he did not try again or why he did not respond to any of her voicemail or text messages until that evening. The Board is of the opinion that the claimant acted with repeated carelessness with respect to his employer’s expectations and requirements. The claimant may not always know in advance that he will be unable to work because of illness or transportation difficulties. However, once the claimant knew he could not report to work, he was obligated to follow the established protocols and report his absence as he had been directed. Additionally, the claimant did not tell the employer he would be gone all day. He presumed the employer would figure it out. The Board does not find this to be a reasonable presumption. The claimant remained obligated to contact the employer and advise them that his absence would be for the entire day. This was another indication of carelessness by the claimant. The Board finds that the evidence establishes that the claimant’s discharge was for repeatedly careless behavior with respect to the proper and timely reporting of his absences, constituting gross misconduct. McFerren v. Washington County Free Library, 2833-BR-12.

The claimant was discharged because she was a no call/no show for one day of work. This incident was the single occurrence during the claimant’s eight years of employment. The claimant was derelict in her duty to report to work. The Board held that the claimant was discharged for misconduct and gave the minimum penalty, 10 weeks. Reed v. Portley’s LLC, 3118-BR-12.

The claimant injured his left arm on April 19, 2011. He was out on disability until September 6, 2011. He provided his employer with a medical disability certificate that stated that he could resume full work duties on September 6, 2011. After the employer received the disability certificate, which clearly certified that the claimant could return to work without restrictions, the employer told the claimant that he had a start date and time for September 12, 2011. The claimant did not call in or report to work. The same activity took place on September 13 and 14, 2011. The claimant was subsequently discharged for refusal to work on September 7, 2011 and failure to work or call in on September 12, 13, and 14, 2011. The Board held that the claimant was discharged for gross misconduct connected with the work. Harper v. Rowen Concrete, Inc., 3408-BR-12.

The claimant was employed as a part-time bus person. The employer’s policy required an employee to call out and inform management as early as possible that he will be unable to work a scheduled shift. It is the employee’s responsibility to find a suitable replacement to cover his shift. In extreme cases, such as severe illness, management will assume the burden of replacing the employee for the shift. The claimant knew the policy. The claimant called out. He did not find a replacement. The owner called and asked the claimant to come into work and they would try to accommodate his needs. The claimant did not show up to work or respond to the owner’s call. The claimant was discharged. The claimant had a responsibility to return the employer’s call to let them know he would not be able to work under any conditions. The claimant’s action demonstrated a dereliction of duty to the employer. The Board found the claimant was discharged for misconduct. Edwards v. GLS, Inc., 4960-BR-13.

On March 27, 2012 the claimant left work due to medical reasons. The employer held the claimant’s position open until she was able to return to work. The claimant was supposed to return to work on May 9, 2012. The claimant did not return to work May 9, 2012 and did not contact the employer. The employer did not hear from the claimant until three weeks later. By then, the employer no longer had a position available for the claimant. The claimant had no intent to quit. The employer initiated the separation after the claimant failed to return to work as expected. The claimant’s doctor changed her return-to-work date to May 21, 2012. The claimant did not explain why she did not communicate this information to the employer prior to May 9, 2012 when the employer was expecting her to return. In failing to keep the employer informed, and not reporting to work as expected, the claimant acted with disregard for the employer. The claimant’s ability to provide notification to the employer was within her reasonable control. The claimant’s discharge was for gross misconduct. McClung v. Toussaint Crawford DDS LLC, 2426-SE-13.

The claimant was discharged for failing to notify the employer of his absence on one occasion and instead, having his fiancée call out for him. The employer did not demonstrate that this was a significant breach of the claimant’s duty. It may have been a policy violation, but the employer still had notice of the claimant’s absence. This is not conduct which warrants a disqualification from benefits. Santiago v. Titan Industrial Services, Inc., 711-BR-13.

The claimant did not have the requisite intent to quit her employment. The employer initiated the separation. The Board concludes that the claimant was discharged by the employer for failing to return to work following an approved leave and failing to maintain contact with her manager. The claimant spoke to someone else at the employer’s business a few times after she left for her leave. She did not, however, make a diligent attempt to reach her manager, or another member of management, until several days had passed. The claimant had telephone number for the people she needed to contact, but she did not pursue this contact as would be expected of someone attempting to preserve her employment. The claimant knew she had been granted three days of leave and that she was expected to return to work at the end of that leave, or to contact the employer for additional time. The claimant’s failure to do either of these things was either an act in deliberate disregard for the employer’s expectations or was indicative of gross misconduct. Chase-Douglas v. Time Realty, Inc., 1067-BR-14.

The claimant worked as a home health aide from September 1, 2013 until September 6, 2013. The claimant was discharged when she failed to report for her scheduled assignments. Upon hire, the claimant was assigned two cases. One of those cases finished, but the second case continued. Therefore, the claimant’s status was that she was employed at the time of her discharge. She failed to follow her employer’s procedures for contacting the office to be assigned her hours of work and failed to report for her scheduled assignment. The Board held that the claimant’s discharge was for gross misconduct. Buckson v. Ambrose Young In-Home Non-Medical Service LLC, 746-BR-14.

The claimant gave the employer a note excusing him from work from July 31, 2013 until August 7, 2013. The claimant did not return to work at that time and did not contact the employer until August 24, 2013. The employer had given the claimant warnings concerning his attendance and his timeliness. The employer had excused several occurrences of absence or tardiness due to reasons beyond the claimant’s control. The employer expected the claimant to maintain contact and return to work following his medical leave. The Board found that this was a discharge. The claimant did not intend to quit this employment. The employer discharged the claimant when he did not maintain contact during and following his medical leave and when he did not return to work at the expiration of that leave. The Board concluded that the claimant’s failure to return to work and failure to maintain contact constituted gross misconduct. Diboma De Njiki v. Silver Diner Development, Inc, 1390-BR-14.

The claimant reported to work on crutches on April 21, 2014, stating he broke his leg. The claimant submitted a doctor’s note to his supervisor, but the note lacked a designated date on which the claimant was to return. The supervisor told the claimant he needed to submit medical documentation that specifies his return date. The claimant said he would be seeing his doctor in the next couple of days and would get the documentation. For the next seven days, the claimant did not report to work, did not contact the employer and did not submit the medical documentation that he was specifically informed he needed. He was consequently discharged. The claimant had difficulty seeing a physician to get the information as quickly as the employer wanted and did not have personal resources or insurance. The claimant did not act with deliberate disregard for the employer’s expectations. However, the claimant certainly could have maintained contact with the employer and explained his situation. The Board finds the claimant’s lack of communication with the employer was misconduct warranting a ten-week penalty. Rice v. Orlando Products, Inc., 3046-BR-14.

4. Effect of Warnings
The claimant missed an enormous amount of time from work due to his injury and illness. This was excused and is not misconduct. But the claimant also missed a large amount of additional time and for many of these absences, he failed to provide his employer medical documentation or call in according to company procedures. He was told several times to do this, but he ignored these warnings. This was gross misconduct. Saylor v. White Rose Paper Company, Inc., 620-BR-91.

Verbal "reminders" given on each occasion of lateness are the equivalent of warnings. Borbor v. L and B Corporation, 588-BR-92.

B. Excuses

1. In General
Where the student claimant was originally told that it was permissible to miss time from work in order to go on interviews for permanent work and then was fired for doing so, there was no misconduct. Joiner v. Santoni's Market, Inc., 466-BH-89.

The claimant had a compelling personal reason to be absent and also provided documentary evidence of the excuse. However, she was late four times without excuse after repeated counseling about lateness. The claimant's reason for lateness was not compelling. The claimant was discharged for misconduct. Martin v. Tabs Associates, Inc., 785-BR-91.

2. Illness and Disability
The claimant was absent from work on an authorized maternity leave. Due to unexpected medical complications, the claimant was not able to return to work as early as anticipated. The claimant kept her employer informed of her medical condition. The employer would not hold the claimant's job until she could return to work after her six-week checkup. Absenteeism due to illness is not misconduct. The claimant was discharged, but not for any misconduct. DuBois v. Redden and Rizk, P.A., 71-BH-90.

The claimant repeatedly failed to notify the employer of his absences and failed to attend scheduled appointments with the employees' assistance program. However, during this period, the claimant was suffering from schizophrenia, which caused him to act in an inappropriate manner. The claimant's psychiatric problems precluded his ability to act deliberately or willfully or to show a wanton disregard of his responsibilities. Since all of the claimant's work problems were caused by severe mental illness, his discharge was not due to misconduct. Fagbolagun v. Department of Planning, 730-BH-90.

The claimant had an excessive number of incidents of tardiness. However, during his last month of employment, his lateness was entirely due to his documented medical condition. The earlier incidents of tardiness were due to transportation problems. The claimant was discharged for misconduct. Schools v. AMI-Sub of Prince George's County, 932-BR-90.

The claimant missed 11 of the last 34 days of work. The claimant had been injured and her assignments were adjusted to be within her capabilities. The amount of absenteeism was not justified by her injury. She had been counseled about the importance of avoiding absenteeism. The claimant was discharged for gross misconduct. Johnson v. United States Postal Service, 66-BR-91.

The claimant notified the employer that he was ill and would be unable to report to work. The employer advised the claimant to return to the job site as soon as he was physically able to do so. The claimant was unable to work for 13 days. Upon recuperating, he returned to the job site ready to resume his job, however, the claimant learned he had been discharged while he was absent due to illness. The claimant's discharge for failing to report to work while he was ill was not for misconduct. Rivas v. Miller and Long Company, Inc., 431-SE-91.

The claimant was only able to work three hours per day, four days per week, due to a documented medical condition over which she had no control. Her inability to work 40 hours per week does not rise to the level of misconduct. Dugan v. Store, Ltd., 2056-BR-92.

The claimant was repeatedly absent from work due to a medical condition which she previously controlled by prescription medicine through medical insurance offered by her employer and which she recently refused to purchase and take. After repeated warnings, the claimant was terminated. Her refusal to purchase and take her medication, causing her to be repeatedly absent from work rises to the level of gross misconduct. Bryant v. Johns Hopkins Bayview Medical Center, 967-BH-95.

The claimant was serving his first term of service in the U.S. Army. He was discharged due to his inability to pass the physical fitness test after he injured his legs in a service-related injury. Since this was a service-incurred injury, the claimant met the requirements to be eligible for benefits even though he did not complete his full term of service. 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. Fogg v. Army, 5477-BR-11.

The claimant was absent from work due to a medical emergency that resulted in the claimant having surgery. The claimant left several messages for the employer stating that she would be absent from work. When the claimant was unable to return to work due to her surgery, the employer discharged her. The claimant’s actions did not rise to the level of misconduct or gross misconduct. Chavis v. Maximum Day Services LLC, 5382-BR-11.

An employer’s policy is informative as to the employer’s expectations and a worker’s understanding of those expectations. However, a policy violation is not definitive of misconduct. The claimant violated the employer’s attendance policy because she was injured in an automobile accident and because she was ill. The claimant had a heightened duty because of her prior extended absence. However, the reason for the claimant’s final absence was beyond her control and cannot be found to be deliberate, willful, repeatedly careless or grossly negligent. The claimant was ill. Her doctor recommended surgery and scheduled it quickly. The claimant advised her employer of the situation and was prepared to submit a doctor’s note. The employer was on notice of the claimant’s absence; there was no reason for the claimant to keep calling the employer to tell them the same thing every day. The Board held there was no misconduct or gross misconduct. Jones v. Annapolis Cleaning Services, Inc., 5751-BR-11.

The employer permitted and authorized the claimant to take a request “indeterminate” medical leave of absence. The claimant violated no work place rule regarding his absences during his approved medical leave. The claimant kept the employer reasonably apprised of his condition. When the claimant reported to work after being released by his physician, he was advised he had been replaced while he was on leave. The claimant, by his words or actions, did not manifest the requisite intent to quit his job. The employer discharged the claimant. The employer presented no evidence that the claimant’s actions violated work place rules, constituted a course of wrongful conduct or that the claimant was negligent. Absenteeism due to illness is not misconduct. Stoddard v. Needle’s Eye LLC, 2299-BR-11.

The claimant did not wish to quit his job and did not quit his employment. He was injured and was off work based upon his doctor’s order. The employer ended the employment relationship when they informed the claimant that no light duty work within his restrictions was available and he did not have any leave remaining to cover his absence. This was a discharge. The employer presented no evidence that the claimant committed any willful or deliberate act in disregard of his employer’s interest or that he was careless or negligent. The Board held that there was no misconduct. Jackson v. University of Maryland at College Park, 716-BR-11.

The claimant was discharged because he could not return to work. He was ill from February 22, 2010 with a likely return to work date of March 29, 2010. He was under a doctor’s care for a legitimate medical reason. His doctor advised the employer of his likely return to work date, but the claimant did not have enough leave to cover him through that date the employer did not wish to hold the claimant’s position open for him. The claimant was discharged for the convenience of the employer, but not for any reason that would constitute misconduct or gross misconduct. Aigbedion v. National Children’s Center, 5687-BR-11.

The claimant continued a pattern of lateness in spite of warnings. The claimant had nine incidents of lateness between a written warning with a suspension on July 12, 2008 and her discharge on January 28, 2009. The claimant had applied for and was granted leave pursuant to the Family Medical Leave Act (FMLA) beginning April 15, 2008 and continuing until October 15, 2008. The claimant knew that she had until October 15, 2008 to submit documentation to have her Family Medical Leave request extended beyond that date. The claimant failed to submit any documentation that would have extended her FMLA. The claimant did not submit any evidence to support her contention that her lateness should have been excused pursuant to FMLA. The Board finds that the employer has met is burden of demonstrating the claimant’s actins rose to the level of misconduct. Ghee v. Johns Hopkins Hospital, 1941-BH-12.

The claimant had a history of poor attendance, for which he was warned. The employer maintained a “no fault” attendance system whereby absences, regardless of cause, are counted against a worker. The employer had tried to work with the claimant, granting him some flexibility while he attempted to correct his attendance problems. However, the claimant’s final absence was for an emergency, unforeseen surgery on and recovery of his hand. Even though this absence may have caused the claimant to exceed the allowable number of attendance points, it was not deliberate, willful, careless, negligent, a dereliction of duty, or a breach of the rules of conduct such that a finding of any misconduct would be appropriate. Cunningham v. Doctors Hospital, Inc., 5928-BR-12.

The claimant began working for the employer on August 15, 2008. On January 14, 2013, the claimant called her new supervisor to inform her that she was not well and experiencing flu-like symptoms. The claimant called her supervisor again on January 15, 16 and 17, 2013 to report her continued illness. The claimant did not contact her supervisor on Friday, January 18, 2013 because she slept for most of the day. On January 19, 2013the claimant saw a text sent the previous day from her supervisor which stated, “Please call me. Do not show up to work.” The claimant went to work the following Monday to collect her belongings. At that time, she received a termination letter from the employer dated January 19, 2013. The letter stated, “Your employment with the company has been terminated.” The employer did not have an established policy regarding absences. The claimant was never previously reprimanded or written up for attendance issues. The Board found that the claimant was discharged. The claimant did not manifest the requisite intent to voluntary quit. The discharge for failing to report to work while the claimant was ill was not for misconduct. Roshupkin v. A & A Medical Supply Company, 3086-SE-13.

The claimant was discharged because of attendance issues. She was tardy because of a previously scheduled court appearance about which the employer was made aware. She was absent because her small child was ill and the claimant had nowhere to place the child. She was absent because of a medical condition for which she was hospitalized. She was tardy because of a doctor’s appointment related to the medical condition. With the exception of the final incident, the claimant’s absence and tardiness was beyond her control. Only the final incident, when she was seven minutes late, may be attributed to the claimant. However, the Board finds this to have been a singular instance and insufficient to support a finding of any degree of misconduct. Goodison v. Paypal, Inc., 1877-BR-13.

The claimant’s tardiness was a result of circumstances beyond her reasonable control. Just as a discharge solely for absence due to illness is not a disqualifying discharge, a discharge solely for tardiness due to illness is not a disqualifying discharge. The claimant was late to work because of the problem she was having during her treatment for her recently-diagnose bipolar disorder. The claimant was trying to comply with the employer’s requirements, but it does not support a finding of simple or gross misconduct. The employer was aware of the claimant’s personal medical issues and the parties discussed a later starting time for the claimant. An Agreement was never reached and the claimant was never approved for the later time. The claimant did not act with disregard to the employer’s interests and did not intentionally breach her duty to the employer. Burnett v. Greater Baltimore Medical Center, 1755-BR-13.

The claimant was a correctional officer. She injured her back in a non-work related accident. She was unable to spend prolonged periods of time walking, standing or sitting. Standing is a necessary function of a correctional officer’s job. No other positions were available for the claimant which she could have performed as sedentary work on a long-term basis. When the claimant could no longer perform the functions of her position, and no other work was available, the employer separated the claimant from her employment. The claimant never formed the intent to quit her employment. The employer was not able to accommodate her medical restrictions. As a result, the employer initiated the separation, making this a discharge. The claimant’s inability to work was caused by a medical condition over which the claimant had no control. The Board concludes the claimant was discharged for reasons which are not disqualifying. Waynes v. Prince George’s County Government, 1883-BR-13.

3. Heightened Duty to Report to Work
Employees who miss a lot of time, even for excused reasons, have a heightened duty not to miss additional time for unexcused reasons and to conform to the employer's notice requirements. Daley v. Vaccaro's, Inc., 1432-BR-93.

The claimant's absences all appeared to be due to illness. However, at least some of her occurrences of lateness were not due to legitimate medical reasons or other unavoidable reasons. An employee who misses a large number of work days, even if excused, has a heightened duty not to miss any work for unexcused reasons. The claimant was discharged for misconduct. Kinsey v. Nordstrom, Inc., 1103-BR-90.

The claimant had been on family medical leave because of illness. After she returned from the leave, she was on medication which made her drowsy. She received two written warnings and a verbal warning because of tardiness and absences related to her medical condition. After another incident of absence related to illness, the claimant was subsequently 45 minutes late returning from her lunch break due to running personal errands. Given the claimant’s absences due to illness, she had a heightened duty to be present at work as scheduled on those occasions when she was not ill. The claimant was discharged for gross misconduct. Bakhsh v. Baltimore Washington Medical Center, Inc., 1322-BR-11.

Between January 1, 2010 and July 1, 2010, the claimant had eight occurrences of unexcused absence or lateness. The Board found that the claimant’s overall attendance should have been considered in the calculus of the prior decision. The evidence established that the claimant missed a considerable amount of time from work in the six months prior to his discharge. While the claimant was frequently absent due to documented illness, he was on a heightened not to miss work for unexcused reasons. There was insufficient evidence that the claimant’s actions were wanton or deliberate. Therefore a finding of gross misconduct is not supported. However, there is sufficient evidence that the claimant’s actions, in the face of warning, demonstrated a violation of work place rules and a course of wrongful conduct supporting misconduct. Eason v. Mountaire Farms, 648-BR-11.

The claimant was absent from work for three weeks due to a medical condition that led to him being hospitalized. He received a warning that if he missed more work, he would be discharged. He subsequently called out for three consecutive days because he was being evicted. The employer discharged him after that. The Board found that the claimant was on a heightened duty to report to work. However, this was mitigated with respect to his lack of deliberateness. The Board held this was misconduct. Reynolds v. 2 North Main LLC, 518-BR-11.

The claimant was a private investigator/security officer. He continually failed to complete necessary paperwork in a timely manner. He failed to timely submit reports, log sheets and time sheets. He was warned about this, but failed to improve. The final incident occurred when he was scheduled to provide security to a client on March 20, 2010. He failed to report and did not notify the employer of his absence. He left the client without security coverage. The Board held that he was discharged for gross misconduct. As a security officer, the claimant had a heightened duty to either appear at his assigned job location in a timely manner or if he was going to be late or not report, to ensure that the employer was timely advised. The claimant’s failure to inform his employer that he was not reporting for work was a deliberate and willful disregard of standards the employer has a right to expect and showed a gross indifference to the employer’s interest. Blair v. Complete Confidential Investigative Services, Inc., 3836-BH-12.

4. Incarceration
The claimant was incarcerated for nine weeks during which time his job ended for lack of funding. The claimant provided notice of the incarceration to the employer, and was eventually released when the charges were dropped. The claimant's incarceration, of which the employer was given notice, for a crime of which the claimant was not guilty, constitutes a good excuse for the absences which were totally beyond his control, and a finding of misconduct is not supported. Lansinger v. Baltimore County Fire Department, 1305-BR-82.

The claimant was discharged for absenteeism while incarcerated for violation of probation. The claimant failed to take any reasonable steps to notify the employer of the absence before or after incarceration. The claimant merely called in sick on his court date. The claimant's actions violated a standard of behavior the employer had a right to expect, showing a gross indifference to the employer's interest, thus constituting gross misconduct. Roach v. Montgomery County Government, 710-BR-85.

An incarcerated claimant was allowed to continue working under a work release program, but failed to adhere to the rules and be present at the work site when required. As a result, he was taken off work release and had to serve the balance of his sentence, causing him to be absent without excuse. The claimant was discharged for gross misconduct. Kennedy v. Baltimore City Wastewater Treatment Plant, 990-BR-85.

The claimant failed to report to work due to his incarceration for a handgun violation. The claimant was discharged for gross misconduct. Farmer v. Perdue Farms, Inc., 1563-BR-91.

The claimant was incarcerated for an indefinite period. He notified the employer about this, but could not provide an anticipated date on which he could return to work. The employer could not hold his position for an indefinite period of time. The claimant’s inability to report to work for this period was because of some act which caused him to be arrested and jailed. The Board, citing Farmer v. Perdue Farms, Inc., 1563-BR-91, held that the claimant was discharged for gross misconduct. Sharp v. KHRG Baltimore LLC, 3702-BR-11.

The claimant was absent from work due to a legal incarceration. She did not contact the employer or request that anyone else do so on her behalf. Communicating to the employer her inability to report to work was the claimant’s responsibility. Failing to do so was a breach of duty to the employer. The claimant’s incarceration is not mitigating. The claimant was discharged for gross misconduct. Warren v. Golden M. Company, Inc., 2510-BR-11.

After the claimant’s last day of work on August 18, 2009, she was incarcerated for allegedly driving without a license. The claimant contacted the employer to inform it of her predicament. The employer said it could not hold the claimant’s job. The claimant was incarcerated for three days. The employer discharged the claimant. The charges against the claimant were dropped nolle prosequi on September 22, 2009. The employer did not meet its burden of demonstrating that the claimant’s actions rose to the level of misconduct or gross misconduct. Warren v. Holiday Inn Express & Suite, 991-BR-11.

The claimant was incarcerated. He did not manifest the requisite intent to quit his job. He made attempts to preserve his employment during and after his incarceration. The Board is persuaded he was discharged. He made reasonable attempts to inform the employer of his incarceration and his availability for work. Because the charges against the claimant were dropped (nolle prossed), there is insufficient evidence that the claimant engaged in misconduct within the meaning of Section 8-1003. Rajbhandari v. Boxco, Inc., 1308-BH-11.

The claimant was separated from his employment due to a legal incarceration. The separation was as a result of a discharge, and not a voluntary quit. The claimant did not resign from his position and he did not have the requisite intent to quit. The claimant was discharged as he was no longer able to report to work or perform the duties of his position. The Board has long held that absenteeism from employment due to a lawful incarceration rises to the level of gross misconduct. Phelps v. Frederick Aerie #1067 FOE, Inc., 764-BR-12.

The claimant was incarcerated. He requested that he be permitted to retain his employment though a work release program. The employer granted the claimant’s request. However, the employer was advised that judicial intervention was a prerequisite to approval for the work release program. The employer was unwilling to keep the claimant’s position vacant until the judicial process was completed. The Board found that the claimant was discharged, not for the reason that he was incarcerated, but due to his inability to report to work. While the employer may have been willing to continue the claimant’s employment on a work release basis, the claimant was not approved for the program in a timely manner. The employer could not be expected to hold the claimant’s position open for the seven months it took to the claimant to be approved for work release. The Board held the claimant was discharged for gross misconduct. Shaffer v. Perdue Farms, Inc., 3608-BR-13.

5. Transportation Problems
The claimant was late one time due to a car problem and notified the employer. However, the claimant was fired after this. The claimant was otherwise a good employee and had worked for the employer for seven years. There was no misconduct. Seledee v. Thomas H. McCarty, et al., 547-BH-88.

The claimant was absent nine times and late 17 times within a year. She received three written warnings and a suspension. The claimant had problems with transportation which led to her absences and latenesses. Transportation problems do not excuse numerous incidents of absenteeism and lateness. The claimant was discharged for gross misconduct. Williams v. Francis Scott Key Medical Center, 942-BR-91.

6. Personal or Family Problems
Where the claimant was called away from work due to the emergency hospitalization of her child, her discharge for the absence was not for misconduct. Tawney v. Continental Plastics, 785-BH-84.

The claimant had received a reprimand because of 20 unscheduled absences between March 2011 and December 31, 2011. He was placed on a leave restriction notice for his poor attendance. This was to remain in force until the claimant demonstrated significant improvement in his attendance. The claimant had absences on January 26, 2012 and on February 6, 2012 which were approved. On March 5, 2012, the claimant call out because his son had a serious nosebleed. The claimant attempted to submit medical documentation, but his supervisor was not available to receive it. The claimant’s last absence was for reasons beyond his control and was not avoidable. The Board held that this does not constitute gross or simple misconduct. Bradley v. U.S. Department of Agriculture, 4557-BR-12.

The claimant and employer executed a last change agreement. The agreement advised that if the claimant violated the company’s attendance policy, he was subject to corrective action up to and including termination. The claimant violated the employer’s last chance agreement when he was tardy on March 13, 2014. He did not do so intentionally, negligently, carelessly or with disregard for the employer. He overslept because his alarm did not go off as scheduled. His alarm did not sound because his power had gone out because of a storm. He was unaware of any of this until the next morning when he awoke late. This was a single incident over a two month period which occurred for reasons beyond the claimant’s control. The Board cannot find that the claimant’s tardiness on March 13, 2014 was for any of the reason which would constitute misconduct under the law. Lopez v. Ecology Services Curbside, 2339-BR-14.

The claimant was involved in an accident at work and was unable to work from August 29, 2013 through October 23, 2013. The employer held the claimant’s job. However, when the claimant was released to return to work, he no longer had full-time child care available for his children. The claimant’s mother had provided child care, but had been injured right before the claimant was to return to work. The claimant did not intend to quit and, in fact, did not quit this employment. He was discharged when he requested part-time hours for a few days so that he could make alternative child care arrangements. The claimant had someone who could provide half-day care, but he needed a few more days either for his mother to recover or for him to arrange for someone else to watch the children. The employer elected to discharge him because he could not work full-time for a few days for reasons which were beyond his reasonable control. The Board concludes the claimant was discharged under non-disqualifying conditions. Ward v. Lewis Steel Production Company, Inc., 1271-BR-14.

C. Leaving Work Early or Walking Off Job
The claimant, who was an essential employee, left work without notice during an emergency overtime shift. The burden is clearly on the claimant to show good reason for leaving. Absent that showing here, the claimant's leaving under the circumstances constitutes gross misconduct. Townsend v. Baltimore Department of Public Works, 758-BH-83.

There was no misconduct or gross misconduct where the claimant left work early because a job-related medical problem with his hands rendered him unable to continue working that day. Drayton v. Perdue, Inc., 104-BR-84.

The claimant had a heated argument with his supervisor, left the site of the argument and visited the president of the company. The claimant told the president that he had problems and was leaving. He left the premises and did not show up again until the next day. When he reported to work, he was advised that he no longer had a job there. The claimant had no right to walk off the job the day before. The claimant's action constitutes misconduct. Tate v. Armscorp of America, Inc., 256-BR-90.

The claimant had his supervisor's permission to take some time off during the day to attend to personal business. When he called his supervisor to let him know that he would be delayed in getting back to work, he was told he was discharged. No reason was given. The claimant was an excellent worker and did not have any serious problems at work. The claimant was discharged, but there was no misconduct. Carter v. Erdman Lumber Company, Inc., 573-BH-90.

The claimant left work early without permission. He was riding to and from work with a coworker who had been given permission to leave early. However, upon learning that his coworker was leaving early, the claimant did not attempt to obtain permission to leave early also. There was no evidence that the claimant falsified his time records. The claimant was discharged for misconduct. Myrick v. Toepfer Construction Company, Inc., 651-BR-91.

Where a claimant has a position where he is responsible for the security and safety of others and their property, a heightened expectation that the claimant will fulfill his duties properly can and should be expected by employers. When the claimant, a trained guard who was responsible for the security of the motel, left his post without authorization, well before the end of his shift and in violation of company rules, he was grossly negligent in his duties and this constitutes gross misconduct. Puth v. Montgomery Investigative, 2625-BR-94.

On March 23, 2012, the claimant left the work place in the middle of the shift. He returned to the work location the next day and stated something had come up at home. The employer discharged him for job abandonment. After the claimant filed a grievance, he was reinstated on June 1, 2012. For purposes of determining whether a claimant is disqualified for unemployment benefits, a suspension is treated the same as any other permanent separation from employment. Because the claimant did not work, and was not paid, for this period of weeks, he is considered unemployed. There was no evidence that the claimant had an emergency or other necessitous reason for abandoning his job. Absent this evidence, abandonment is indicative of gross misconduct. Aguilar v. UPS Ground Freight, Inc., 4448-BR-12.

X. Alcohol and Drug Use
Drug abuse and alcoholism are considered diseases under Section 8-101 of the Health-General Article of the Annotated Code of Maryland. Where alcoholism result in “an irresistible compulsion to drink,” the resulting absenteeism and performance problems have been held not to be misconduct. Jacobs v. California Unemployment Insurance Appeals Board 25 Cal. App. 3d 1025, 102 Cal. Rptr. 364 (1972). This doctrine does not excuse an employee’s conduct where he has refused the chance to get treatment, has deliberately failed to complete treatment, or has not shown that his urge to drink is an irresistible compulsion.

An employee's refusal to submit to a drug screening test may be grounds for a finding of gross misconduct. However, when requiring drug or alcohol testing, the employer must adhere to the provisions of Section 17-214 of the Health-General Article of the Annotated Code of Maryland in order to have the test results be considered as evidence of misconduct. This section requires, among other things, that the employer give the employee written notice of his right to resubmit the same test sample to a laboratory of the employee's choosing. If the employer fails to offer this option to the employee, the test results may not be able to be used as a basis for a finding of misconduct.

A. On Work Premises
The claimant was discharged for gross misconduct because he reported to work in an intoxicated condition after the employer had given him a second chance to rehabilitate himself. The claimant showed some ability to remain sober and the employer made a sincere effort to give the claimant an opportunity to rehabilitate himself. Chinn v. Cook's Supermarket, 1168-BH-81.

The claimant drove the employer's truck while under the influence of alcohol. This was gross misconduct. Howard v. Ray Sears and Son, 517-SE-87.

The employer hired a private investigator to investigate the use and sale of illegal drugs on its property. In the presence of the private investigator, and on company property, the claimant purchased a $10.00 bag of marijuana. This was a violation of the employer's standards of ethics and conduct and was gross misconduct. Patterson v. Applied Physics Laboratory, 864-BR-89.

The claimant was discharged for drinking alcoholic beverages while on the job, in violation of the employer's policy. This was gross misconduct. Vernon v. Slapstix Comedy Club, 356-BR-90.

One hour after the claimant began her shift, her supervisor noticed the smell of alcohol emanating from the claimant. The claimant was sent to the employer’s nurse for testing. A breathalyzer test was administered approximately two hours after the claimant’s shift had begun. The test result was an alcohol level of 0.106. A second breathalyzer test was administered 15 minutes later with the result of the 0.099. The legal limit defining impairment is 0.08. The claimant was discharged. The claimant had been drinking heavily the night before this incident. The claimant reported to work while in an intoxicated state. She was most certainly under the influence of alcohol while on duty. This poses a danger to the claimant, her coworkers and the employer in general. The Board finds this is gross misconduct. Dashiell v. Mountaire Farms, 1655-BR-13.

Urine testing is recognized by the US Department of Transportation as the only reliable method to determine the presence of cocaine. There is no scientific correlation between levels of cocaine found in the blood and found in the urine. Benzoylecgonine is the major cocaine metabolite which appears in the human body as it breaks cocaine down into its component parts. Benzoylecgonine is specific to cocaine and not caused by other drugs, prescribed or over-the-counter, or by herbal supplements. Current testing methodologies are sufficiently sophisticated to isolate this metabolite to the exclusion of other substances. Benzoylecgonine does not appeal on a drug screen in the absence of cocaine ingestion. Bayne v. Choptank Electric Coop., 820-BH-14.

B. Off Work Premises

The claimant reported to work with a .17 blood alcohol level after consuming beer a few hours before work. The claimant's job was to drive a crane. The claimant was discharged for gross misconduct. Prestileo v. Durrett-Sheppard Steel, 14-BR-87.

The claimant admitted to his employer that he took and also gave to another employee, controlled dangerous substances while on a dinner break at home. Both went back to work, and the other employee behaved in a crazed manner. The claimant was discharged for gross misconduct. Hadaway v. Convention Complex, 98-BR-88.

The claimant correctional officer was convicted of driving while intoxicated during his off duty hours. Criminal charges of drug possession were placed on the stet docket and not prosecuted at that time. As a result of this, the claimant, whose duties included searching inmates for drugs, was suspended pending discharge. A correctional officer is in a position of trust in which his own integrity and avoidance of criminal action is relevant to his daily work. Therefore, a breach of the employment rule prohibiting the use of drugs, even while off duty, constitutes gross misconduct. Queen v. State of Md./MCIJ, 219-BH-89.

The claimant was a dietary aide who dealt directly with patients at the employer’s facility. The employer smelled alcohol on the claimant after she reported to work. Three hours after the start of her shift, the claimant was tested for alcohol. The test showed a .022 alcohol result. The employer has a zero tolerance policy for drug/alcohol use by employees. The claimant was discharged. The claimant stated that she consumed drinks during the previous 24 hours, but stopped at midnight. She reported to work the next day between noon and 1:00 p.m. the Board took official notice that over time, the blood alcohol measure will decrease. If the claimant tested at .022 three hours into her shift, her blood alcohol level would have been higher at the start of the shift. Reporting to work under the influence of alcohol violated a work rule. However, the Board does not find an evidence of a willful disregard for the employer’s interests. It was not established that the claimant knew or should have known that consuming alcohol the night before reporting to work would leave traces of the alcohol in her blood sufficient to result in a positive test. The Board held the discharge was for simple misconduct. Lucas v. Heartland Employment Services LLC, 3448-BR-12.

C. Alcoholism As a Disease
The claimant, who was an alcoholic, was absent on several occasions, some due to alcohol treatment and one occasion due to an on-the-job injury. After a long period of abstinence, the claimant again began drinking, entered a treatment program, and was discharged upon his return to work. Based upon evidence adduced at the hearing, it was concluded that the claimant was a "chronic alcoholic" as that term is defined in Section 8-101 of the Health-General Article of the Annotated Code of Maryland. Whether his chronic absenteeism, caused by chronic intoxication, constitutes misconduct depends on whether his intoxication-induced behavior was the product of an irresistible compulsion to drink; if so found, the claimant's behavior would not be disqualifying. See, Jacobs v. California Unemployment Insurance Appeals Board, 25 Cal. App. 3d. 1035, 102 Cal. Rptr. 364 (1972). In this case, the claimant was unable to control his drinking, and much of his absenteeism, particularly the last incident that led to his discharge, was due to an irresistible compulsion to drink, and was therefore not misconduct. Johnson v. Union Trust Company of Maryland, 204-BH-85.

The claimant had a large number of latenesses which were due to alcoholism. However, the claimant failed to show a good faith effort to correct the problem or that he suffered from an irresistible compulsion to drink. The claimant was discharged for gross misconduct. Lane v. City of Baltimore, 678-BR-89.

The claimant failed to report to work for three days without notifying the employer of his absence. There was insufficient evidence that an irresistible compulsion to drink alcohol led to the claimant's absenteeism. The claimant was discharged for gross misconduct. Reardon v. Housing Authority of Baltimore City, 708-BR-90.

D. Effect of Treatment

1. Duty to Seek Treatment
An employer's failure to discover a claimant's alcoholism and then treat it under its employee assistance program does not excuse the claimant's ten-year history of performance problems. An employer is not the legal guardian of its employees, nor does the existence of an employee assistance program make the employer the insurer against any of the diseases or maladies which the program is designed to treat. Thornton v. UMAB, 701-BH-85.

The claimant suffered from the illness of alcoholism, but failed to take advantage of available treatment, after being specifically granted a leave of absence to attend treatment, and then failed to return to work for two weeks thereafter. The claimant's conduct constitutes gross misconduct. Williams v. Baltimore City Schools, 469-BR-88.

The claimant's job consisted of applying a hazardous chemical to underground storage tanks. As part of a required physical, the claimant was tested for drugs and tested positive for cocaine. The employer demanded that the claimant enroll in a drug treatment program but the claimant refused and was discharged. The employer was entitled to require the claimant to make all necessary efforts to stop ingesting this drug. The claimant was discharged for gross misconduct. Insley v. Buffcoat, Inc., 432-BR-91.

2. Cooperation with Treatment Program
The claimant was a drug user who attended a drug treatment program and returned to work on the condition that he would remain drug free. The claimant violated this condition. This is gross misconduct. Sommerfield v. National Gypsum, 337-BH-87.

The claimant failed to abide by treatment for alcoholism, even with the employer's assistance. This was held to be gross misconduct. Gunther v. City of Baltimore, 633-BH-87.

E. Effect on Job Performance

1. Alcohol
The claimant, who reported to work under the influence of alcohol while learning how to operate a fork lift truck, was discharged for gross misconduct. Young v. Fort Howard Cup Corporation, 933-BR-89.

The claimant was employed as a maintenance man in a dairy plant. The claimant technically violated the employer's policy by having a .037 level of alcohol in his blood at work. Under Maryland law, this blood level does not raise a presumption that the claimant was either intoxicated or under the influence of alcohol. Without any proof that the claimant was unfit, the claimant committed no misconduct since having this small concentration of alcohol in one's system is neither illegal nor detrimental to the employer's interest. Poe v. High's Dairies, Inc., 224-BH-93.

2. Drugs
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.

It is not the claimant's addiction to drugs that constitutes misconduct, but his violation of the employer's rules by reporting to work and operating dangerous equipment while having drugs in his system. Reaves v. ISPA Company, 126-BR-93.

The employer's rule forbidding employees to report to work with a detectable residue of illegal drugs in their systems was reasonable. Gordon v. Baines Management Company, 487-BR-93. NOTE: This decision was affirmed by the Circuit Court and by the Court of Special Appeals.

The claimant was discharged as a result of a positive drug test administered pursuant to the employer's zero-tolerance drug policy. The claimant's unrebutted testimony was that he had only ingested cough medication that he was given by a co-worker, the contents of which he was unaware at the time of ingestion. The Board found that the employer had not met its evidentiary burden of proof. Further, the Board concluded that one isolated incident, due to an unintentional mistake by the claimant, does not rise to the level of misconduct, let alone gross misconduct. Lyston v. PreMix Industries, Inc., 01379-BH-99 (1999).

F. Alcohol and Drug Screenings

1. Mandatory, Random Testing
The claimant drove a bus for the employer. Two days after he was hired, he took a physical which revealed chemical evidence of the use of cocaine. When the employer learned the results of the claimant's physical, the claimant was discharged. This was held to be gross misconduct. Lucas v. Gladney Transportation, 577-BH-90.

The employer was subject to the requirements of the United States Department of Transportation, which required random drug testing. The claimant was familiar with the procedures, having been tested before. After receiving notice to present himself within the hour for testing, the claimant failed to appear or to contact his employer. A finding of gross misconduct is warranted. Gintling v. Baltimore Gas and Electric Company, 913-BH-92. NOTE: This decision was reversed by the Circuit Court. The Court of Special Appeals then reversed the Circuit Court, affirming the Board's original decision.

A school bus driver's failure to submit to a required drug test amounts to gross misconduct. Deluca v. Montgomery County Public Schools, 1632-BR-93.

The Board found more credible, the claimant’s statement at his initial interview with the claims examiner. When asked why he did not stay and provide a second urine sample, the claimant stated, “I just did not want to I don’t have any explanation as to why I didn’t want to stay and take the second test. I just didn’t want to do it.” This prior statement was not reconciled with his inconsistent statement at the hearing. The Board found the statement at the hearing, that there was no one at the facility to observe him, less credible. The Board found that the claimant refused to submit to a drug test required by the employer for his continued employment. The claimant knew or should have known this was necessary and he had no justifiable reason for his refusal. The claimant’s refusal was an act in deliberate or willful disregard for the employer’s expectations. The evidence demonstrates that the employer discharge the claimant for gross misconduct. Jenkins v. Caroline County Commissioners, 638-BR-12.

2. Required Due to Employee's Conduct
The claimant showed impairment, had the odor of marijuana, and refused a drug test against the employer's policy, direct order and warnings. The claimant could have taken the test in private. The claimant's actions constitute gross misconduct. Conney v. Fort Howard Cup Corporation, 552-BH-88.

The claimant had an attendance problem and the employer required urine and blood testing. The claimant refused. This was held to be gross misconduct. Stauffer v. Noxell Corporation, 1111-BH-88.

On the claimant's last day of work, he was taking an excessive amount of time to do his work, was late for work and arrived sweating, nervous and with dilated pupils. He avoided eye contact with other employees. The employer sent the claimant for a drug/alcohol screening test which, after being redone, came back positive for marijuana and cocaine. The claimant was discharged for gross misconduct. Savage v. The Johns Hopkins Health System Corporation, 223-BH-89.

The claimant truck driver had undergone rehabilitation for cocaine addiction at the employer's expense. He successfully completed the program and knew that one of the conditions of his return to work would be to remain drug free, which would be confirmed by random screening by the employer. The claimant was given a drug screening test and failed it. This was gross misconduct. Bydume v. Baltimore Gas and Electric Company, 950-BR-90.

3. Employer's Obligation Under Health-General Article
The employer failed to meet the requirements of Section 17-214.1(c)(1)(iv) of the Health-General Article of the Annotated Code of Maryland. This section provides that an employer, after having required an employee to be tested for the use or abuse of any controlled dangerous substance, and who receives notice that the employee has tested positive, after confirmation of that test result, shall provide the employee with a statement or copy of subsection (d) of this section permitting an employee to request independent testing of the same sample for verification of the test result. Therefore, based on the employer's failure to meet this requirement, thereby denying the claimant an opportunity to be retested, the Board concluded that the claimant was discharged for no misconduct. The Board cannot consider as evidence test results which were not acquired in conformity with the law. Webe v. Anderson Oldsmobile Company, 88-BR-91.

A claimant was given a chance to go into an addiction treatment program in lieu of termination. Part of the agreement between the claimant and the employer was that if the claimant did not abide by the rules of the treatment program, he would be fired. Subsequently, the claimant tested positive for alcohol. This proved that he violated the rules of the program. Section 17-214.1(c)(1)(iv) of the Health-General Article does not apply, because the employer did not administer the test nor require the claimant to be tested. The employer only required that the claimant abide by the rules of the treatment program. The claimant violated a rule of the treatment program, which resulted in a finding of gross misconduct. Parker v. Greater Baltimore Medical Center, 885-BH-91.

The claimant was randomly tested for drugs in accord with the union agreement, and was found to be positive for cocaine. He was then required to enroll in an employee assistance program since it was his first offense. One of the conditions for his remaining employed was that he not test positive for any drugs. Subsequently, the claimant was tested and found positive for opiates and cocaine metabolites. As a result, he was discharged. The employer in this case is not required to follow the drug testing requirements in Section 17-214.1 of the Health-General Article because it had entered into a compact with Maryland, Virginia and the District of Columbia allowing it to provide for the removal of employees without regard to the laws of the signatories. The claimant was discharged for gross misconduct. Thompson v. Washington Metro Area Transit Authority, 1461-BH-91.

Whether the claimant is informed of, or given the opportunity to have a second testing of the same sample is irrelevant when the claimant does not deny that the results of the drug test are accurate. Boyd v. Cantwell Cleary Company, Inc., 1845-BH-92.

The claimant was not given an opportunity to refute the results of his drug test, however he does not dispute the drug test results. Furthermore, he admits to a relapse of his drug addiction. The fact that he did not see an actual copy of the lab report and was not informed of his right to retest the sample is not relevant when the claimant does not dispute any of the results or allegations and admits to a continuation of drug abuse. Nolan v. Lyon, Conklin and Company, Inc., 115-BR-95.

The claimant does not dispute the fact that he failed a random drug test by testing positive for cocaine. The undisputed drug test result is itself enough to support a finding of gross misconduct even without testimony from the employer at the hearing. The test result speaks for itself. Jones v. Race Track Payroll Account, Inc., 2204-BR-95.

The employer is not obligated to arrange for or provide a retest of the employee's specimen, but is required to provide a copy of the employee's retesting rights. The employee is to designate the laboratory that is to do the retesting. The employer has the duty to cooperate with the employee, i.e. have the sample sent to the employee-designated certified laboratory, but is not required to provide a list of approved laboratories. Burton v. Thorn EMI Malco, Inc., 1852-BR-92.

The claimant truck driver tested positive for the use of cocaine on a recognized test conducted by an established laboratory. The procedures used by the employer comply with the regulations issued under the Federal Motor Carriers Safety Act, 49 C.F.R. Section 391 et. seq., but these procedures do not comply with the Maryland law regulating drug testing by all employers. (See, Section 17-214.1 of the Health-General Article.) The Maryland law is not preempted by the federal Motor Carriers Safety Act. Absent a showing that the employer has complied with the Health-General section cited above, the Board will not consider drug test results as probative evidence in a discharge case. But, in this case, the claimant actually knew of his rights under the Maryland statute from his experience at a previous employer. He made no substantial effort to obtain a retest. The purpose of the Health-General section is met by the claimant's actual knowledge of his right to have a retest. Requiring written notification is simply an added formality in this case. Scott v. Old Dominion Freight Line, 28-BH-93.

Section 17-214.1(d) affords employees the right to have their urine or blood samples retested at their expense. The law sets no limitation on this expense and does not require the employer to use any particular laboratory in order to minimize cost to employees who desire a retest on their samples. Use of an out-of-state laboratory does not impose an unreasonable cost on employees. Toles v. Caterair International Corporation, 1329-BR-93.

The claimant was enrolled in the employee assistance program (EAP) which required that the claimant remain drug free. The claimant tested positive for marijuana on a random drug test. The claimant was notified of the test results, knew the employer’s drug policy and was given an opportunity for an independent test at any approved laboratory, which she declined. She was subsequently discharged. The Board citing Thompson v. Washington Metro Area Transit Authority, 1461-BH-91, found that the employer was not required to follow the provisions of the Maryland Health General Article because the employer entered into an agreement between Virginia, Maryland and the District of Columbia allowing it to provide for the removal of employees without regard to the laws of the signatories. However, even though the employer is not required to meet the requirements of the Maryland Health-General Article, the employer’s actions met its standards. The Board held the claimant was discharged for gross misconduct. McGriff v. Washington Metro Area Transit Authority, 1031-BR-12.

The claimant was discharged for allegedly failing a drug test after an on-the-job accident. There is insufficient evidence that the employer complied with the provisions of Maryland Code Annotated, Health General Article, Section 17-214. As a result, evidence of the drug test cannot be considered. The drug test results were not offered or admitted into evidence and the employer’s substance abuse policy was not entered or admitted into evidence. The claimant disputed the results of the drug test. The claimant was not properly informed of his opportunity to have the same sample of the drug test results retested. The Board held discharge was for no misconduct. Smith v. Joseph J. Magnolia, Inc., 925-BR-13.

4. Validity of Test
The repackaging of a urine sample which had sat sealed in a refrigerator for five days compromised the validity of the drug test, even where the claimant observed the repackaging and initialed the first, then the second container, to indicate that it was his sample. Nunnally v. Ace Hardware Corporation, 205-BH-93..

XI. Exercise of Employee's Rights
When an employee is discharged solely because the employee exercised a statutory or constitutional right, no misconduct will be found. For example, where an employee was discharged after she informed her employer that she planned to file a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination, there was no misconduct. Also, if an employee is discharged because he is unable to work certain hours due to religious beliefs, the imposition of a disqualification from receiving unemployment benefits would be a violation of the employee's First Amendment rights. Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 107 S.Ct. 1046 (1987).

A. Right to Respond to Job Conditions

1. Responding to Evaluations
The claimant was discharged as insubordinate for responding to an evaluation by submitting a written memorandum to her supervisor and the company president which included complaints about her supervisor. There was no misconduct. Morris v. Automated Health Systems, 817-BR-83.

2. Requesting Change in Work Status
The claimant asked for a raise and a change in hours. As a result, the claimant was discharged, but there was no misconduct. West v. Ronald Jones, et al., 583-SE-88.

The claimant worked for almost two years on the 4:00 p.m. to 11:00 p.m. shift. He began taking a course which made it very difficult for him to report to work by 4:00 p.m. The claimant asked the employer if his hours could be cut and his starting time be set at 5:00 p.m or 5:30 p.m., but the employer failed to respond. When the claimant subsequently reported to work on time, he was told that he had been laid off. A suggestion that one's hours be changed is not misconduct. Therefore, the claimant was discharged, but not for any misconduct. Hill v. BPS Guard Service, Inc., 1031-BR-91.

3. Refusing to Reimburse for Cash Shortages
The claimant gas station attendant was discharged for her refusal to reimburse the employer for shortages incurred on the job, since such payment 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, which provide that deductions for shortages cannot be made from wages if such deductions bring the employee's remuneration below the minimum wage. Therefore, the claimant's refusal to reimburse the employer does not constitute misconduct. Hatfield v. Tri-State Oil, 390-BR-82.

4. Filing Charges Against Employer

a. Discrimination
The claimant was discharged upon informing her employer that she was going to file a complaint with the Equal Employment Opportunity Commission (EEOC). The claimant had a right to complain if she felt aggrieved, and alerting the employer that she intended to file a complaint is not misconduct. Cummings v. Rod n' Reel Restaurant, 725-SE-83.

b. Other
The claimant was discharged for filing a request for arbitration. This was not misconduct. Weambe v. Housing Authority of Baltimore, 126-BR-88.

5. Questioning Employer's Action or Inaction
The claimant was discharged after he questioned the employer about whether the employer was making timely payments to the court of the child support payments he was withholding. The employer in fact was not making timely payments. The claimant had every right to question the employer about this. His questioning of the employer did not amount to misconduct or gross misconduct. Barnes v. Empire Glass and Mirror, Inc., 1171-BR-91.

B. Religious Beliefs
The claimant was discharged because he could not work on Sunday, as required by the employer, because of religious reasons. A state cannot constitutionally apply the eligibility provisions of the unemployment compensation statute so as to deny benefits to a claimant who refuses employment because the employment violates that claimant's religious beliefs prohibiting work on certain days. To do otherwise would be in violation of the guarantee of free exercise of religion under the First Amendment to the United States Constitution made applicable to the states by the Fourteenth Amendment. Sherbert v. Verner, 374 U.S 398, 83 S.Ct. 1790 (1963). Therefore, benefits were allowed the claimant under the Maryland Constitution and the First and Fourteenth Amendments to the United States Constitution. Estes v. Fred and Harry's Restaurant, 789-BH-84.

The claimant missed work for sincere religious reasons and was discharged. There was no misconduct. Robinson v. United States Fidelity and Guaranty Company, 975-BH-89.

C. Right to Seek Other Employment

1. For Oneself
The claimant became unhappy with her supervisor's methods of supervision. In December, 1989, the claimant met with her supervisor and another employee and announced that she was looking for other employment. The claimant did not intend to quit unless she found better employment. The employer, however, began searching for a replacement for the claimant and in early January, 1990, informed the claimant that her last day of work would be January 19, 1990. A statement by an employee that the employee is seeking, or is going to seek other work, simply is not the same as resigning. The claimant was discharged, but not for any misconduct. Levitt-O'Malley v. It's Polite to Point, 515-BR-90.

The claimant informed the employer that he had accepted another job which was to begin at some indefinite time in the future. The claimant did not intend to resign and specifically informed the employer that there was no definite date set for his job change. The employer required the claimant to come up with a date for his resignation within 24 hours. This amounts to a discharge. Announcing an intention to leave work at some time in the future is not misconduct. Kroski v. Social and Scientific Systems, 1072-BR-90.

2. For Others
The claimant was discharged for mentioning a job opening to a coworker who was later hired for the position. The claimant had a right to pass along publicly available information to a friend, and her actions do not constitute misconduct. Benvenga v. Sapero and Sapero, 720-BH-84.

D. Strikes
When a wildcat strike in violation of the terms of the employment contract occurred, the claimant, a union steward, requested that another union begin a secondary boycott in order to shut down the employer's operations. The claimant also refused to ask his own men to return to work when so requested by the employer. The attempt to shut down the employer's operations was gross misconduct. Since the employer's request that the claimant, a union official, at least instruct his men to honor the contract was reasonable, the refusal do this was also gross misconduct. Wilson v. CSY Finance, Inc., 580-BH-86.

E. Other
Making public statements about one's employer could constitute misconduct if the statements were untrue or possibly if the statements were even technically accurate but taken so much out of context that the net effect would be unfair harm to the employer. In this case, the employer failed to meet its burden of showing that statements in a television interview were untrue, or unfairly taken out of context. With regard to the newspaper article, the employer has not shown that the claimant made any of the derogatory remarks. The claimant was discharged, but not for misconduct or gross misconduct. Bailey v. Diesel Institute of America, 752-BR-89.

After the claimant refused to sign a driver's liability statement, the employer told him to turn in his keys and leave. The statement that the claimant was asked to sign was almost identical to an earlier statement that he had signed when he was first hired and which was technically still in effect. The claimant adamantly refused to sign it without stating his objections or offering to negotiate. The claimant was discharged for misconduct. Fitch v. Eastend Hotel, Inc., 1037-BR-89.

After the claimant was involved in an accident while driving the employer's vehicle, the employer sought to collect the $250 insurance deductible amount from the claimant's wages pursuant to a prior agreement by the claimant to indemnify the employer. The claimant was discharged when he refused to do so primarily because he denied any negligence on his part. Courts have generally been reluctant to enforce contracts which purport to allow a party to make unilateral determinations of negligence and damages, thereby circumventing the judicial process. The claimant's refusal to allow a deduction for damages, where he disputed negligence and indebtedness, is not misconduct. Bayne v. G and M Performance Parts, Inc., 694-BR-83.

XII. Application of Penalty

A. Discharge from Noncovered Employment
The disqualifications under Sections 8-1001 through 8-1003 are based on the reason for the claimant's present state of unemployment. In every case, the reason why the claimant left his or her last employment, covered or noncovered, is certainly relevant to the reason the claimant is unemployed. Yasin v. Grempler Realty, Inc., 273-BR-82.

B. Extent of Penalty
The claimant was found to have been discharged for gross misconduct under Section 8-1002. The claimant was later reinstated with back pay and argued that the Section 8-1002 penalty should be ignored because the discharge was nullified by the reinstatement. The Section 8-1002 penalty is final and is not affected by any subsequent reinstatement. Tracey v. SCM Chemicals, 166-BH-84.