Client Won Unemployment Appeal - Lapse in Judgment was Not Misconduct

Angela Madathil recently represented a client who appealed a Notice of Determination which assessed a 14-week benefit disqualification because the Nebraska Department of Labor determined the client had been fired under disqualifying conditions, meaning that she was fired for misconduct pursuant to Neb. Rev. Stat. 48-628(1), (2).

My client was a department manager at a local fast-food restaurant.  She was working the morning shift when a customer called and started cussing about how the restaurant had forgotten his burritos.  My client then repeated back to another employee that they had forgotten this customers f*cking burritos.  It may not have been a great decision to restate the cuss words.  However, my client was attempting to help the other employee to understand the situation in case she was more familiar with the customer.  The employee indicated she was not familiar with the customer, and later reported the incident to management.  The customer hung up at that point.  The call lasted about 12 seconds.  The management of the restaurant decided to terminate my client for violating company policy which does not allow for any foul language.

Nebraska Unemployment Law provides for a disqualification from benefits if an individual is discharged as a result of misconduct connected with his or her work.  The Nebraska Supreme Court has defined misconduct as behavior evidencing

(1) wanton and willful disregard of the employer's interests,

(2) deliberate violation of rules,

(3) disregard of standards of behavior which the employer can rightfully expect from the employee, or

(4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations.  Douglas Cty. Sch. Dist. 001 v. Dutcher, 254 Neb. 317, 576 N.W.2d 469 (1998).

I pointed out to the Administrative Law Judge that "“As a general rule “[p]oor judgment, inability to cope with situations, and occasional incidents of non-deliberate failure to precisely follow established rules and procedures do not constitute the kind of willful and deliberate misconduct that will disqualify an employee from receiving unemployment benefits as provided by law.”  Meyers v. Nebraska State Penitentiary, 280 Neb. 958, 966 (2010).   While everyone would have preferred if my client had not repeated back any of the foul language, her poor judgement did not rise to the level of misconduct that barred her from receiving unemployment benefits. 

If you were terminated in Nebraska and you need help in a hearing to determine if you are eligible for Nebraska unemployment benefits, contact Angela Madathil, and Madathil Law Office for a free consultation. 

Angela Y. Madathil
Madathil Law Office, LLC

Nebraska Unemployment Attorney
Serving clients throughout Nebraska

In Omaha
1625 Farnam Street #830
Omaha, NE 68102

In Lincoln
285 South 68th Street Place, Suite 322
Lincoln, NE 68510

Nebraska EmploymentAttorney

angela@madathillawllc.com

https://www.madathillawllc.com/

T: 402.807.3174

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