Misconduct Connected with Work: Definition in Oregon Unemployment Appeal Law

by Joel Christiansen

The Oregon Employment Department routinely denies claims based on findings of “misconduct.” In fact, misconduct is the most common basis for denial of claims. A misconduct finding from the Oregon Employment Department does not indicate that an employer has contested unemployment. It does, however, require an appeal – which includes a telephone appeal hearing. Employees should not shy away from these hearings because they are commonly successful.

The term “misconduct connected with work” has a specific meaning under Oregon unemployment law. ORS 657.176(2)(a) and (b) disqualifies employees who were fired or suspended due to “misconduct connected with work” from receipt of unemployment benefits. As further clarification to ORS 657.176OAR 471-030-0038(3) defines misconduct as follows: “A willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee is misconduct.” An act or series of actions that amount to a willful or wantonly negligent disregard of an employer’s interest is misconduct. The willful or wantonly negligent failure to maintain a license, certification or other similar authority necessary to the performance of the occupation involved is misconduct, so long as such failure is reasonably attributable to the individual.

Misconduct does not include isolated instances of poor judgment, good faith errors, unavoidable accidents, absences due to illness or other physical or mental disabilities, or mere inefficiency resulting from lack of job skills or experience.

Discharge for “compelling family reasons,” when the individual has made the attempt to maintain the employer-employee relationship, is not misconduct.

The issue in many appeals comes down to whether an employee engaged in a “willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee.” By statute, misconduct does not include mistakes, isolated instances of poor judgment, or other areas where employees are trying their best but simply not succeeding. It is important to note that employers bear the burden of proving misconduct. In other words, employees are not legally responsible for proving their innocence.

Willful violations typically describe situations where employees are accused of knowingly violating a rule. On the other hand, OAR 471-030-0038(1)(c) defines wantonly negligent as:

indifference to the consequences of an act or series of actions, or a failure to act or a series of failures to act, where the individual acting or failing to act is conscious of his or her conduct and knew or should have known that his or her conduct would probably result in a violation of the standards of behavior which an employer has the right to expect of an employee.

Determining whether certain conduct was willful or wantonly negligent misconduct is a very fact-specific inquiry. Outcomes vary drastically based on what happened in a particular case and how well the parties can prove what happened. Due to the nature of the Oregon unemployment appeal system, there will alway be some uncertainty about the law will apply in particular cases.