1300 DISCHARGE 1301 STATUTE 1305 PRINCIPLES 1310 DEFINITIONS 1315 FACT FINDING. 25(e)(2)

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1 TABLE OF CONTENTS 1300 DISCHARGE 1301 STATUTE 25(e)(2) 1305 PRINCIPLES (A) Introduction (B) Deliberate Misconduct in Willful Disregard of the Employerʹs Interest (C) Knowing Violation of Reasonable and Uniformly Enforced Rule or Policy of the Employer (D) Distinction Between Deliberate Misconduct and Rule Violation Analysis 1310 DEFINITIONS (A) Reasonable Rule (B) Reasonable Application (C) Uniformly Enforced Rule (D) Incompetence (E) Substantial and Credible Evidence (F) Deliberate Misconduct (G) Willful Disregard (H) Mitigating Circumstances 1315 FACT FINDING (A) Procedure (B) Was There a Violation of a Company Rule or Policy? (C) Was the Violation a ʺKnowingʺ Violation? (D) Was the Rule Reasonable? (E) Was the Rule Uniformly Enforced? (F) Was the Rule Violation a Result of the Claimant s Incompetence? (G) Was the Misconduct Deliberate? (H) Was the Behavior in Willful Disregard of the Employerʹs Interest?

2 TABLE OF CONTENTS 1320 RULE VIOLATION ANALYSIS (A) Fact Pattern (B) Was There a Rule? (C) Did Claimant Know of the Rule? (D) Was the Claimant Consciously Aware of the Act and the Fact that the Act was in Violation of the Employerʹs Rule or Policy? (E) Was the Rule Reasonable? (F) Was There a Violation of the Rule? (G) Was the Rule Uniformly Enforced? (H) Was the Rule Reasonably Applied? RULE VIOLATIONS CIRCUMSTANCES AND POLICIES 1321 RULES AGAINST SWEARING IN THE WORKPLACE (A) Knowing Violation of a Reasonable and Uniformly Enforced Rule Swearing at Work 1322 ATTENDANCE OR TARDINESS RULES (A) Knowing Violation of a Reasonable and Uniformly Enforced Attendance Rule (B) Unreasonable Application of a Rule (C) Reasonable Application (D) No Uniform Enforcement 1323 SAFETY RULES (A) Knowing Violation of a Rule Conscious Awareness (B) Knowing Violation of a Rule No Conscious Awareness (C) Reasonable Application of Rule (D) No Uniform Enforcement 1324 HEALTH OR BUSINESS IMAGE RULES (A) Knowing Violation of a Reasonable and Uniformly Enforced Rule (B) Unreasonable Application of a Rule (C) Reasonable Rule (D) Uniform Enforcement (E) No Uniform Enforcement 1325 RULES REGULATING CONDUCT OUTSIDE OF THE WORKPLACE (A) Reasonable Rule (B) Not a Reasonable Rule

3 TABLE OF CONTENTS 1326 MONEY, PROPERTY, AND EQUIPMENT RULES (A) Knowing Violation of a Reasonable and Uniformly Enforced Rule (B) Not a Knowing Violation of a Reasonable and Uniformly Enforced Rule (C) No Uniform Enforcement (D) Incompetence 1327 RULES PROHIBITING FALSIFICATION OF INFORMATION (A) No Knowing Violation of a Reasonable and Uniformly Enforced Rule (B) Knowing Violation of a Uniformly Enforced Rule or Policy 1328 RULES WHICH WOULD RESULT IN INJURY TO THE HEALTH OR SAFETY OF AN EMPLOYEE (A) Unreasonable Application of a Rule 1329 CONTRADICTORY RULES ISSUED BY DIFFERENT SUPERVISORS (A) Unreasonable Application of a Rule 1330 ADHERENCE TO RULE IS CONTRARY TO FEDERAL OR STATE LAW OR PUBLIC POLICY (A) Unreasonable Rule or Policy DELIBERATE MISCONDUCT CIRCUMSTANCES AND POLICIES 1331 ATTENDANCE (A) Knowledge of Employer s Expectations (B) Lack of Knowledge of Employer s Expectations (C) Mitigating Factors (D) Condoned Behavior (E) Final Warning Extended 1332 JOB PERFORMANCE (A) Insubordination (B) Conduct that Interferes with Work (C) Sleeping on the Job (D) Work Not Performed (E) Indifference Towards Work (F) Quantity or Quality of Work

4 TABLE OF CONTENTS 1333 CONFLICTS AT WORK (A) Inappropriate Behavior with Co Workers (B) Physical Assault (C) Verbal Assault (D) Personality Conflict 1334 MONEY, PROPERTY, AND EQUIPMENT (A) Misappropriation of Employer s Funds (B) Alleged Theft or Misappropriation (C) Authorized Use of Employer s Property (D) Accidents While Operating a Company Vehicle (E) Damage to Equipment or Materials 1335 FALSIFICATION OF RECORDS OR FRAUDULENT STATEMENTS (A) Time or Production Records (B) Application for Work (C) Fraudulent Reason for Leave of Absence 1336 ALCOHOL AND DRUG ABUSE (A) Possession of Alcohol or Drugs on the Job (B) Intoxication and Use of Intoxicants During Working Hours (C) Reporting to Work After Indulgence in Intoxicants 1337 MISCELLANEOUS REASONS (A) Plans to Enter the Employerʹs Type of Work (B) Arrest of Employee Outside Work (C) Discharge Because of Sexual Orientation 1338 DOMESTIC VIOLENCE 1340 SUSPENSIONS FOR WORKPLACE VIOLATIONS 1341 STATUTES 25(f) Applies To Public and Non Public Employees Regulation 430 CMR 4.04 (4) 1342 PRINCIPLES 1343 CIRCUMSTANCES AND POLICIES (A) No Disqualification After a 10 Week Suspension (B) Suspension During Indefinite Layoff (C) Discharge After Suspension

5 TABLE OF CONTENTS 1344 SUSPENSION OF PUBLIC EMPLOYEES FOLLOWING INDICTMENT 1345 STATUTES MGL Chapter 268A 25 Applies to County, Municipal, and District Officers MGL Chapter Applies to Officers and Employees of the Commonwealth MGL Chapter 151A 22 Applies to Individuals Eligible for Benefits 1346 PRINCIPLES (A) Definition of Indictment (B) UI Benefits are ʺCompensationʺ (C) Non Use of Wages from Suspending Employer (D) Interested Party Status (E) Indefinite Disqualification 1347 CIRCUMSTANCES AND POLICIES (A) Indefinite Suspension of Public Employees (B) Change from Suspension to Discharge (C) Denial of Wages from Suspending Employer Following Indictment (D) Use of Wages from Suspending Employer After Indictment No Conviction (E) Use of Wages When There is Subsidiary Employment 1350 CONVICTION 1351 STATUTE 25(e)(3) 1352 PRINCIPLES 1353 DEFINITIONS (A) Felony or Misdemeanor (B) Conviction

6 (B) 1300 DISCHARGE 1301 STATUTE 25(e)(2) ʺNo waiting period shall be allowed and no benefits shall be paid to an individual pursuant to this chapter...(e) for the period of unemployment next ensuing and until the individual has had at least eight weeks of work and in each of said weeks has earned an amount equivalent to or in excess of his weekly benefit amount after he has left work... (2) by discharge shown to the satisfaction of the commissioner by substantial and credible evidence to be attributable to deliberate misconduct in willful disregard of the employing unitʹs interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employeeʹs incompetence...ʺ 1305 PRINCIPLES (A) Introduction According to 25(e)(2) of the Law, individuals may be disqualified from receiving benefits if they are discharged from work for either: deliberate misconduct in willful disregard of an employerʹs interest; or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer. (B) Deliberate Misconduct in Willful Disregard of the Employerʹs Interest Deliberate misconduct alone is not enough to disqualify an individual from unemployment benefits. Such misconduct must also be in willful disregard of the employerʹs interest. Deliberate misconduct in willful disregard of the employerʹs interest requires intentional conduct or inaction that the employee knew was contrary to the employerʹs interest. The critical factual issue in determining whether an employeeʹs discharge resulted from his intentional misconduct is the employeeʹs state of mind at the time of the misconduct. In making that factual determination, you must consider the presence of any mitigating factors that contributed to the claimantʹs state of mind. A two part analysis must be employed and both deliberate misconduct and willful disregard of the employer s interest must be shown in order to disqualify the employee. The employee s state of mind at the time of the act or omission is an issue for both parts of the analysis. If a claimant has brought about his own unemployment through intentional disregard of standards of behavior that the employer has a right to expect, and there are no mitigating factors, the claimant will be denied benefits pursuant to this section of the Law. If a workerʹs action (or inaction) is not deliberate, but rather is a result of inability to

7 1305 (B) 1305 (C) perform the job, the result is not misconduct in willful disregard of the employerʹs interest. For example, if a worker is discharged due to absenteeism attributable to circumstances beyond his control, such as serious injury or illness, child care responsibilities or the need to care for a seriously ill family member, then there is no deliberate misconduct. A discharge for unintentional acts (or omissions) does not establish a basis pursuant to 25(e)(2) for denying benefits. Chapter 26 of the Acts of 1992 amended MGL Chapter 151A, 25(e)(2) by removing the word ʺsolelyʺ from the misconduct provisions of the statute. The effect of this Law change is that an employer may now support his reason for discharge due to misconduct with evidence of a history of incidents (whether or not each incident rises to the level of misconduct in and of itself), so long as the final act or reason for discharge constitutes deliberate misconduct in willful disregard of the employerʹs interest. For example, if an employee is discharged for absenteeism caused by circumstances beyond his or her control, such as a serious injury or illness, child care responsibilities, the birth or adoption of a child, or the need to care for a seriously ill family member, then there is no deliberate misconduct. By allowing an employer to show a history of incidents prior to a discharge, the employer may more easily establish that the claimant was aware of its expectations. With respect to both deliberate misconduct and rule or policy violations, the burden of proof falls on the employer to produce substantial and credible evidence to establish that a disqualifying discharge has occurred. No disqualification shall be imposed if the individual establishes that the individual s discharge was due to circumstances resulting from domestic violence including the need to address the physical, psychological and legal effects of domestic violence. (C) Knowing Violation of Reasonable and Uniformly Enforced Rule or Policy of the Employer If the stated reason for discharge is violation of a rule or policy of the employer, the employer must establish that the rule or policy existed, was communicated to the employee, was reasonable and uniformly enforced and was knowingly violated by the claimant. An employer must establish the existence of a workplace rule or policy and may do so by written evidence of such rule or policy, or if it is not in writing, by substantial and credible evidence that it was verbally communicated to the claimant. An employer may establish that a written rule or policy was communicated to the claimant because it was published (for example, in an employee handbook or personnel manual which was given to the claimant prior to a violation); displayed in the workplace in an area likely to be observed by the employees subject to the rule; or included in a collective bargaining contract.

8 1305 (C) 1305 (C) Finally, the policy must be consistent with the employer s obligations under the law and must not conflict with any legal right of the employee. In some instances workplace rules or policies may not be in writing, but they must nonetheless have been communicated to the claimant. For example, rules and policies may be verbally explained to an employee at a training, orientation, union, or other work related meeting. The employer must also establish that the employee s violation of the employer rule or policy was knowing, that is, that the violation involved at least the degree of intent present where a claimant was both: Consciously aware of the act or (omission to act) itself and; Consciously aware that he or she was in the process of violating the employerʹs rule or policy when the act was done or omitted. Generally the fact that an employerʹs rule or policy was communicated to a claimant may provide some support for an inference that subsequent violations of the rule or policy are ʺknowing violationsʺ. However, the factfinder must also look to the facts and circumstances at the time of the violation to determine whether the employer has established that the claimant acted (or failed to act) with a conscious awareness of not only what the employee was doing but also that what he or she was doing was in violation of the employerʹs rule or policy. Since conscious awareness involves some degree of intent or plan that an act be done, acts which are essentially the product of unplanned or spontaneous reactions such as emotional rather than intentional reactions to a situation are generally not considered to be done with conscious awareness. There may be occasions when the claimant is under extreme stress, fatigue, or provocation at the time of a rule violation and these factors may offer support for a conclusion that the claimantʹs rule violation was not done with conscious awareness. For example, if a claimant violated an employerʹs policy by using abusive language in response to provocation or while the claimant was under extreme stress, one might reasonably conclude that the claimantʹs act did not involve the necessary level of conscious awareness. On the other hand, even though the circumstances surrounding the final act may have involved provocation or extreme stress, if the claimant had a history of previous violations and warnings for the same or similar conduct, then one might reasonably conclude that the final act was not in fact ʺspontaneousʺ but rather was done with conscious awareness. However, the mere presence or absence of a prior history of rule violations is not controlling; rather, evidence of a prior history of rule violations is simply an additional factor to help you determine whether the act which violated the rule was committed spontaneously or with conscious awareness.

9 1305 (C) 1305 (D) Violations of employer rules or policies may involve either acts of commission such as the situation described above where the claimant committed the act of swearing or acts of omission. An example of an act of omission is when an employerʹs rule or policy requires that a certain act or acts be done and the claimant fails or omits to perform the act, resulting in a rule violation. If, for example, a claimant was required to follow a certain procedure as part of his job and he fails or omits to follow this procedure and is discharged, you must consider the existence of the rule, the means of communicating the rule, and whether or not a history or pattern of following (or not following) a rule existed. You must also consider unusual or extenuating circumstances which may have led to the failure to act or omission including claimant stress, fatigue, or provocation to determine whether the claimant was acting with conscious awareness at the time of the rule violation. If a claimant offers as an unusual or extenuating factor to an act of omission that he forgot to follow the rule and therefore did not have the requisite ʺconscious awarenessʺ at the time of the rule violation, you must determine whether the forgetfulness was due to unplanned or spontaneous factors such as stress, fatigue, or provocation. Generalized ʺforgetfulnessʺ without a spontaneous or unplanned reason can not be used to award benefits when specific employee rules were made known to the claimant with the expectation that the rule be followed as part of a claimantʹs job duties. A determination of whether a rule violation was done with the requisite level of conscious awareness will therefore always turn on the facts of a particular case. Refer to for circumstances and policies. (D) Distinction Between Deliberate Misconduct and Rule Violation Analysis The essential difference between the ʺdeliberate misconduct in willful disregard of an employerʹs interestʺ analysis and the ʺknowing violation of a reasonable and uniformly enforced rule or policy of an employerʺ standard is that the deliberate misconduct standard requires an inquiry into the claimantʹs state of mind with respect to both an intent to commit the act leading to or resulting in misconduct, and an intent to act in a manner contrary to the employerʹs interest. The knowing rule/policy violation standard, requires an inquiry into the claimant s state of mind to determine whether the violation involved at least the degree of intent present where a claimant has acted or failed to act with conscious awareness both of the act committed or omitted and that the claimant is in the process of violating the rule or policy. Factors which bear upon whether a state of ʺconscious awarenessʺ can be said to exist at the time of a rule violation, include whether a claimantʹs acts were essentially unplanned and spontaneous (due to factors such as extreme stress, fatigue, or provocation) sufficient to indicate a lack of conscious awareness contemporaneous with the rule violation.

10 1310 (A) 1310 (C) The knowing rule violation analysis does not involve an inquiry into the claimantʹs state of mind with respect to the intent to act in ʺwillful disregard of an employerʹs interestʺ in committing the violation DEFINITIONS (A) Reasonable Rule In all cases, a rule or policy must be reasonable in light of an employerʹs legitimate interest. There must be a clear relationship between the rule or policy and the employment, and such rule or policy must also be one that could be expected to be adhered to in the normal course of events. A rule that conflicts with or violates any legal right of an employee is per se unreasonable. Therefore, a rule that denied an eligible employee s right to family or medical leave under the Family and medical Leave Act of 1993 (FMLA), or to maternity leave under the Massachusetts Maternity Leave Act (MMLA, would be unreasonable, and an employee terminated for violating such a rule would not be disqualified under 25(e)(2). (B) Reasonable Application In all cases the rule or policy must be reasonable in itself with respect to the employerʹs interest, and it must not be applied in a manner that produces unreasonable results. Generally, the overall reasonableness of the rule or policy is all that the employer needs to establish. However, there may be circumstances of an unusual nature where the reasonableness of the rule or policy in its application to the claimant under the particular facts leading to discharge may also need to be examined. In such cases, the claimant must show that the circumstances preventing his compliance with the rule or policy were of such an unusual nature that he should not reasonably be expected to adhere to it. Examples of circumstances that are of an unusual nature include serious weather related problems, unavoidable transportation problems, rules that are contradictory, or require actions that are illegal or improper, or other objectively verifiable unusual circumstances. (C) Uniformly Enforced Rule A work rule or policy must be uniformly enforced i.e., the employer must show that it treats all employees subject to the workplace rule or policy in a similar manner when a rule or policy is violated. If an employer uses a progressive system of discipline, you must consider the claimantʹs status within the system.

11 1310 (D) 1310 (G) (D) Incompetence A claimant may raise as a defense to a discharge for violation of a rule or policy, that he or she was incapable of adhering to the mandate or requirements of the rule due to a lack of ability. If such failure to comply with a rule or policy is not due to any lack of effort on the part of the claimant, or the claimant was otherwise incapable of complying with the company rule or policy due to a lack of ability, then he or she is not disqualified pursuant to this section of the Law. Similarly, if a claimantʹs work or on the job performance is not satisfactory to the employer, but there is no deliberate lack of effort on the part of the claimant to conform with the employerʹs requirements, then the claimant is not subject to disqualification for deliberate misconduct. In some circumstances, a claimant s incompetence may be due to a temporary factor (such as stress attributable to family illness causing loss of concentration), even though the claimant has the inherent ability to perform the job when not influenced by such temporary factor. (E) Substantial and Credible Evidence Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. The evidence must be the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. Credible evidence is that which is worthy of belief when all the relevant factors with respect to a particular person or issue are taken into account. To be credible, evidence should be probable in view of the transaction that it describes or to which it relates, so as to make it easily believable. Examples of such evidence may include written or oral statements by the employer and claimant, an employerʹs written warnings, or documents setting out rules or policies. (F) Deliberate Misconduct For a particular act or omission by a claimant to be considered ʺdeliberateʺ depends on whether such act or omission to act is determined to be purposeful or intentional misconduct. (G) Willful Disregard This phrase means that when the claimant committed the act of misconduct, he or she knew it was contrary to the employerʹs expectations or interests. The claimantʹs ʹstate of mindʹ at the time of the misconduct must be considered in order to establish willful disregard. In determining the ʹwillfulnessʹ of an act, the following must be considered: The workerʹs knowledge of the employerʹs expectation The reasonableness of that expectation, and The presence of any mitigating factors

12 1310 (G) 1315 (A) An act or omission that is caused by circumstances beyond the claimant s control for example, by a serious medical condition, the need to care for a seriously ill family member, childbirth or adoption, or childcare responsibilities does not constitute deliberate misconduct or willful disregard. (H) Mitigating Circumstances A claimant must show that mitigating circumstances influenced his behavior to such an extent that his actions were not in willful disregard of the employerʹs interest. Mitigating circumstances may be events over which a claimant had no control, or they may involve instances whereby a claimant acted or omitted to act in a particular way because he or she had no alternative course of action. For example, if a claimant is absent from work without notifying his employer because he was involved in a serious car accident or suffered a heart attack, this would constitute a mitigating circumstance. However, if a claimant has been late for work on previous occasions, and is subsequently late for work because of a transportation problem, this will not likely constitute a mitigating circumstance, especially if the claimant could have made alternate transportation arrangements FACT FINDING (A) Procedure In order to determine whether there has been a disqualifying discharge, you must analyze the disqualifying event in the following manner: 1. Determine the actual reason for a separation regardless of how such separation is characterized on either Form 1062 or For example, it is not uncommon for employees who are about to be terminated for cause to be given the choice of resignation or being discharged. A resignation in this instance does not alter the fact that the employer initiated the separation and you must therefore treat the separation as a discharge. You must determine whether or not the reason for the claimantʹs separation was for deliberate misconduct in willful disregard of the employerʹs interest or for a knowing violation of a rule or policy. If the reason for discharge involved deliberate misconduct or a rule violation, the claim will be denied irrespective of whether the claimant resigned in lieu of discharge, or was discharged. Obtain company policies or rules applicable to the reason for discharge by phone or in writing. (Since the burden of proof is on the employer, the employerʹs statement should be taken first if possible.) 2. Refer to the appropriate section of the handbook pursuant to ʹCircumstances and Policiesʹ if applicable. If a rule or policy does not exist to cover the reason for discharge cited, pursue fact finding according to the guidelines below.

13 1315 (A) 1315 (C) 3. Discover whether the employer has a progressive form of discipline prior to the final discharge of employees. If so, obtain dates of warnings and reasons for discipline imposed, including suspensions. (Some acts of misconduct, such as theft or assault, are so inappropriate that warnings are not a prerequisite to discharge.) 4. If a union is involved, discover whether a grievance was filed or whether the case is in arbitration. If not, why not? 5. Issue a determination using the Form 3720/124 explanation provided in the handbook, or consult with the Determinations Department for an appropriate explanation for circumstances not specifically covered or discoverable through fact finding. If the claimant has acted in a way that does not involve violation of a particular rule or policy, then you must determine whether the claimantʹs act or omission rises to the level of deliberate misconduct. This analysis involves a determination that the claimantʹs actions were acts of deliberate misconduct and in willful disregard of an employerʹs interest. (B) Was There a Violation of a Company Rule or Policy? Did the claimant know of the company rule? How was the rule made known to the claimant? Was it posted within the company at a place likely to be observed by employees? Did the claimant learn of the rule at a training or orientation session? Did the employer verbally explain the rule to the claimant? Did the claimant receive a document that contained the rule? If so, did the claimant sign for the document? Was the employer s written policy sufficiently clear so that the claimant could follow it? If the rule was communicated in writing, does the claimant read English? If the rule was communicated verbally, does the claimant understand English? If there was no written rule, were prior warnings issued to the claimant, or was disciplinary action taken for previous violations of the rule that the claimant was aware of or should have been aware of? (C) Was the Violation a ʺKnowingʺ Violation? Was the claimantʹs violation of the rule subsequent to his knowledge of the rule? Was the claimant consciously aware of the act or omission (which was in violation of the rule or policy)? Was the claimant consciously aware that he or she was in the process of violating the employerʹs rule or policy? Was the violation due to a spontaneous or unplanned provocation or event? Did the claimant have a prior history of violating the employerʹs rule or policy?

14 1315 (D) 1315 (H) If a prior history of rule violations can be established, was the final act committed due to a spontaneous or unplanned provocation or event? Did the employer fail to apply the policy to the claimant in the past? Was the rule applied inconsistently on a case by case basis? (D) Was the Rule Reasonable? Was the rule or policy clearly connected to an employerʹs legitimate interest for example, did it involve such issues as management, corporate or business image, or health and safety concerns at the workplace? Could the claimant reasonably have been expected to adhere to such rule or policy under ordinary circumstances? If the rule was violated, were there unusual circumstances that prevented the claimant from complying with it? Was the rule reasonably applied? (E) Was the Rule Uniformly Enforced? Did the employer show that the rule was enforced through warnings, suspensions, or discharges for similar violations by other employees subject to the rule in the past? Did the claimant believe he would not be subject to disciplinary action for violation of the company rule if so, why? If the employer contends that it was unaware of other violations of the same rule or policy, should it have been aware of such violations? Did the employer refute specific allegations that a rule was not uniformly enforced? (F) Was the Rule Violation a Result of the Claimantʹs Incompetence? Was the claimant incapable of performing the work or, on that occasion, of complying with the employer s rule or policy? (G) Was the Misconduct Deliberate? Was the misconduct deliberate? What was the behavior or conduct that led to the discharge? Was there an intentional act or omission on the part of the claimant? Was the act or omission the result of incompetence or error and therefore not intentional?

15 1315 (H) 1320 (A) (H) Was the Behavior in Willful Disregard of the Employerʹs Interest? If the behavior was deliberate, was it in willful disregard of the employerʹs interest? What was the employerʹs expectation? Was the claimant aware of the employerʹs expectations? How did the claimant know of the employerʹs expectations? Were the employerʹs expectations reasonable were they clearly connected to the employerʹs legitimate interest? Why did the claimant act in a way that was contrary to the employerʹs expectations? Did the claimant believe in good faith that he or she was acting to advance the employer s interest? If warnings were issued, did any action or inaction by the employer lead the claimant to believe that the warnings could be disregarded without adverse consequences? Was the claimantʹs act generally considered to be so outrageous that prior warnings from the employer were not required (for example, theft, unprovoked assault, etc.)? Did the claimant know whether other employees had or had not been warned, dismissed, or suspended for the same of similar conduct? 1320 RULE VIOLATION ANALYSIS This section describes the analysis required for those situations involving a discharge for violation of a rule or policy. For purposes of this analysis, a hypothetical case of dress code violation is used, although the same general analysis should be used for all rule violation discharges regardless of the actual rule or policy cited. Employers may establish reasonable work rules governing an employeeʹs appearance while on the job. However, for a rule violation to be disqualifying, the employer must establish that the claimant: (1) was consciously aware of the act (what it was he or she was doing) and (2) consciously aware that he or she was in the process of violating the employerʹs reasonable uniformly enforced rule or policy. (A) Fact Pattern A claimant worked in a large commercial bank in a customer service position. He had been employed for six months. On a warm summer day, the claimant came to work wearing jeans, rather than the customary suit and tie that he and his co workers wore to work each day. The claimantʹs supervisor called the claimant aside and told him to wear a suit and tie in the future or he would be fired. The following day the claimant again reported to work wearing jeans and was discharged. Although there was no dress code or written or posted rule regarding appropriate apparel, it was customary in this bank for men to wear suits and ties and for women to wear suits or dresses in order to present a professional image.

16 1320 (B) 1321 (A) (B) Was There a Rule? Although there was no written rule or policy regarding dress code, the custom at this particular place of business was for men to wear a suit and tie and for women to wear a suit or dress to work. In addition, the specific requirement with respect to the dress code was communicated to the claimant by his supervisor. This verbal communication by the employer established the existence of a rule for future violations. (C) Did the Claimant Know of the Rule? Because the supervisor verbally informed the claimant of the bankʹs requirement regarding professional appearance while at the workplace, the claimant was made aware of the rule. (D) Was the Claimant Consciously Aware of the Act and the Fact that the Act was in Violation of the Employerʹs Rule or Policy? There were no circumstances in this case which would indicate that the rule violation was due to a spontaneous or unplanned incident therefore the claimant showed the requisite level of conscious awareness at the time of the rule violation. (E) Was the Rule Reasonable? The rule is reasonable because it protected a legitimate interest of the employer, i.e., a neat appearance at work in furtherance of a professional image. (F) Was There a Violation of the Rule? When the claimant reported to work a second time wearing jeans, after having been warned by the employer to wear a suit and tie, the employee violated a rule. (G) Was the Rule Uniformly Enforced? If there were previous incidents of a same or similar violation by other individuals, the employer must have treated those violations in a similar manner, i.e., the employer must have made the other employee(s) aware that the action was a violation of a rule, and then enforced the rule by imposing disciplinary action in a manner similar to that which was imposed upon the claimant. (H) Was the Rule Reasonably Applied? There may be circumstances of an unusual nature that would negate the application of an otherwise reasonable rule. Under these circumstances the claimant could not reasonably be expected to adhere to the rule.

17 1321 (A) 1321(A) RULE VIOLATIONS CIRCUMSTANCES AND POLICIES 1321 RULES AGAINST SWEARING IN THE WORKPLACE (A) Knowing Violation of Reasonable and Uniformly Enforced Rule Swearing at Work A claimant was discharged because he swore at a customer in violation of a companyʹs uniformly enforced rule. The rule was made known to the claimant because the claimant had a prior history of swearing at customers and was warned that such behavior was a rule violation. You determine that there were no unusual or extenuating circumstances surrounding the final act (e.g., extreme stress, fatigue or provocation). Therefore the claimant will be deemed to be ʺconsciously awareʺ of both the act of swearing and the fact that he was committing a rule violation. The claimant will be disqualified from receiving benefits pursuant to 25(e)(2) of the Law. You were discharged because of a knowing violation of a reasonable and uniformly enforced work rule regarding. Such discharge is subject to disqualification pursuant to the above cited section of the Law. A claimant was discharged after swearing at a patient in violation of the companyʹs rule to ʺrefrain from all manner of physical and verbal patient abuseʺ. The claimant had just finished working a double shift (at the request of her employer) and was tending to a patient who swore at her. The claimant had never previously sworn at a patient and said that when she did finally swear back at the patient she did so due to the provocation, and while she was under extreme stress. In fact, her swearing was spontaneous and unplanned and she was not ʺconsciously awareʺ that she swore or that she was violating a rule due to these circumstances. Because the claimant was not ʺconsciously awareʺ of violating a rule, the claimant will not be disqualified from receiving benefits pursuant to 25(e)(2). The claimant was discharged for rule violation regarding. However, due to circumstances at the time of the violation, the claimant was not ʺconsciously awareʺ of the act or that the act was in violation of the employerʹs rule or policy. Therefore the claimant is not subject to disqualification pursuant to the above cited section of the Law.

18 ATTENDANCE OR TARDINESS RULES In some circumstances, extensive absences may be non disqualifying for UI purposes to the extent that they are covered by the Family and Medical Leave Act (FMLA). Generally, absences pursuant to this Act that result in a separation from work are discussed pursuant to the ʹvoluntary leaveʹ section of the handbook. However, in instances where such absences constitute a work rule violation, the claimant will not be subject to disqualification. The following is a brief summary of the FMLA provisions. Under this federal law, eligible employees are entitled to twelve weeks of unpaid leave (although in some cases the accrued paid leave such as vacation or sick leave may be used) for certain family and medical reasons during a twelve month period. These reasons include the birth or placement of a child for adoption or foster care, care for an immediate family member (spouse, child, or parent) with a serious health condition or medical leave when the employee is unable to work because of a serious health condition. FMLA applies to all public agencies (including State, local and federal employers), as well as local education agencies (schools) and those private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry or activity affecting commerce including joint employers and successors of covered employers. To be eligible for FMLA benefits, an employee must: Work for a covered employer; Have worked for the employer for at least a total of 12 months; Have worked at least 1,250 hours over the prior 12 months; and, Have worked at a location where at least 50 employees are employed by the employer within 75 miles. Another circumstance in which extensive absence may be non disqualifying for UI purposes is to the extent that they are covered by the Massachusetts Maternity Leave Act (MMLA). Qualified female employees are entitled under the MMLA to take up to eight weeks of leave for the purpose of giving birth to a child, adopting a minor child, or adopting a disabled child under twenty three years of age. In order to be eligible for maternity leave under the MMLA, a female employee must: Have completed the probationary period set by her terms of employment, or if there is no such period, have worked for her employer on a full time basis for at least three months; and Provide her employer with at least two weeks notice of her anticipated dates of departure and return.

19 (A) An employee who complies with the above conditions of either the FMLA or MMLA and takes leave, must be restored to the same or an equivalent position upon return from leave. An equivalent position must have the same status, pay, length of service credit and seniority as the job the employee held upon taking leave. The only exception to this rule occurs when other employees of equal status and seniority in the same or similar positions have been laid off due to economic conditions. (A) Knowing Violation of a Reasonable and Uniformly Enforced Attendance Rule An employerʹs attendance policy provided for a discharge after a certain number of absences within a specified time frame. The claimant knew of the rule and was discharged after he exceeded the maximum permissible number of absences. You establish that there were no unusual circumstances that prevented the claimantʹs attendance at work on the occasion of the final absence. Because the claimant knew of the employerʹs rule and was consciously aware of both being absent, and that being absent was in violation of the employerʹs rule or policy, and you determined that the rule was both reasonable and uniformly enforced, the claimant is disqualified from receiving benefits pursuant to 25(e)(2) of the Law. You were discharged because of a knowing violation of a reasonable and uniformly enforced work rule or policy regarding. Such discharge is subject to disqualification pursuant to the above cited section of the Law. [Note: Insert applicable reason for discharge, i.e., ʺno notification to employerʺ; ʺunauthorized absence from workʺ; ʺwalking off the jobʺ, etc.]

20 1322 (B) 1322 (B) (B) Unreasonable Application of a Rule A claimant was discharged because he exhausted the number of allowed absences provided for in an attendance rule. You determine that the final absence was due to an unusual circumstance beyond the claimantʹs control such as caring for an ill child. You determine that the rule is unreasonable as applied to the claimant because although it protects a legitimate business interest (unnecessary absenteeism), the claimant attempted to explain the reason for such violation to the employer and an unusual circumstance negated adherence to the rule. Therefore, the claimant is not subject to disqualification pursuant to 25(e)(2) of the Law. A claimant was discharged because she exhausted the number of allowed absences provided for in an attendance rule. You determine that the claimant s absences and discharge were due to circumstances resulting from domestic violence, including the individual s need to address the physical psychological and legal effects of domestic violence. You determine that, although the rule protects a legitimate business interest (unnecessary absenteeism), the claimant s circumstances relating to domestic violence negated adherence to the rule. Therefore, the claimant is not subject to disqualification under 25(e)(2). You discharged the claimant for a knowing violation of a uniformly enforced attendance rule or policy. Since the final act or reason for discharge was due to an unusual circumstance beyond the claimantʹs control, i.e. the rule was not reasonably applied to the claimant and the claimant is not disqualified pursuant to the above cited section of the Law. A claimant worked at a fast food restaurant for an employer whose work rule stipulated that all second shift employees must complete a series of ʺclean upʺ duties prior to closing the shop. These duties often went beyond the hours of the employeeʹs shift depending upon how busy the shop was immediately prior to closing, and employees understood their obligations to remain even under these circumstances. The claimant was unable, on the occasion giving rise to the discharge, to complete the clean up work as she had to leave to pick up her child from day care. The claimant had no choice but to leave immediately after her shift because her child care provider could not accommodate these additional work hours and attempts to secure alternative care for her child on the occasion which gave rise to the discharge were unsuccessful. Although the claimant was discharged, she is not subject to disqualification pursuant to 25(e)(2) of the Law.

21 1322 (B) 1322 (C) An employer in the retail food industry posted a rule requiring all cashiers to wear a particular uniform without alterations or additions. Although all of the cashiers wore the particular uniform according to the rule, the claimant knowing about the rule, nonetheless altered her uniform by adding a scarf around her neck. The employer asked the claimant to remove the scarf and the claimant refused. The employer discharged the claimant for violating the uniform non alteration rule. You determine that the uniform non alteration rule protected a legitimate employer interest (promoting employee uniformity and business image) and that the claimant could normally be expected not to alter the employer s uniform while working as a cashier. The claimant was consciously aware of both her refusal to remove the scarf and that such refusal was in violation of the employer s rule. However, you determine that the claimant s refusal to remove her scarf was due to circumstances resulting from domestic violence. In particular, the claimant wore the scarf to cover bruises around her neck suffered as a result of domestic violence. Claimant s violation of the employer s uniform non alteration rule is therefore not subject to disqualification under 25(e)(2) of the law. You discharged the claimant for a knowing violation of a uniformly enforced policy requiring. However, the claimant was unable to comply with the rule due to and she could not reasonably be expected to adhere to the rule. Therefore, the claimant is not subject to disqualification pursuant to the above cited section of the Law. (C) Reasonable Application The claimant was a stock person at a retail establishment. Due to anticipated inclement weather, the entire staff was told to adhere to the work rule requiring them to remain on their designated shifts until further notice. At the first sign of snow, the claimant left his shift for no unusual or extenuating reason and without his supervisorʹs approval. Although the employer decided some hours later to close the shop due to increasing snowfall, the claimant was discharged for violation of a reasonable and uniformly enforced rule pursuant to 25(e)(2) of the Law. You were discharged for which was a knowing violation of a reasonable and uniformly enforced rule of the employer. There were no unusual or extenuating circumstances such that the rule could be considered unreasonable in its application to you, and you are therefore subject to disqualification pursuant to the above cited section of the Law.

22 1322 (D) 1323 (A) (D) No Uniform Enforcement A claimant was discharged for violating a reasonable employer rule concerning absence. However, it was established that the employer never took similar action with respect to the same rule violation by other employees. In fact, the claimant stated that she believed it was permissible to be absent because she knew the employer condoned violations of this rule by other employees. Since it cannot be established that the rule was uniformly enforced, the claimant is not subject to disqualification pursuant to 25(e)(2) of the Law. You discharged the claimant because of absences from work in knowing violation of your attendance rule. However, other employees had not been subject to disciplinary action for the same rule violation. Therefore, because the rule was not uniformly enforced, the claimantʹs discharge was not subject to disqualification pursuant to the abovecited section of the Law SAFETY RULES Employers may establish rules to protect the safety of employees or those who purchase or use the employerʹs product or service. Safety rules are almost always reasonable. (A) Knowing Violation of a Rule Conscious Awareness A claimant worked as a groundskeeper for a large hotel complex. The employer had a rule which stipulated that the gate to the outdoor swimming pool must be locked at certain times to prevent unauthorized use of the pool and to prevent accidents in this area. The claimant received a copy of this rule when he first started work, and the rule was prominently posted in the employeesʹ lunch room. The claimant admits that he did not lock the gate upon leaving his shift.

23 1323 (A) 1323 (C) You establish that there were no circumstances at the time of the rule violation that would give rise to an assertion that the failure to follow the rule (or omission) was done without ʺconscious awarenessʺ when the claimant left work without closing the gate. The claimant is discharged pursuant to 25(e)(2) of the Law for a knowing violation of a reasonable and uniformly enforced rule. You were discharged for that was a knowing violation of a reasonable and uniformly enforced rule of the employer. Such discharge is subject to disqualification pursuant to the above cited section of the Law. (B) Knowing Violation of a Rule No Conscious Awareness You established that just as the claimant was about to lock the gate, he heard cries for rescue from the pool. The claimant immediately went to the rescue of the individual in the pool and in aiding the victim did not return to lock the gate. This rule violation was a spontaneous response to an unusual and stressful circumstance, such that the claimant was not consciously aware of the rule violation with regard to locking the gate at the time of the violation. The claimant is not subject to disqualification pursuant to 25(e)(2) of the Law. You discharged the claimant for that was not a knowing violation of a reasonable and uniformly enforced rule of the employer. Such discharge is not subject to disqualification pursuant to the above cited section of the Law. (C) Reasonable Application of Rule A claimant knew of the rule not to leave the pool without permission and it has been established that the rule was uniformly enforced. While guarding the pool, the claimant suddenly remembered a phone call he had to make, and he abruptly left the pool without permission. Since there were no unusual circumstances that prevented the claimant from complying with the rule, he is subject to disqualification pursuant to 25(e)(2) of the Law. You were discharged for that was a knowing violation of a reasonable and uniformly enforced rule of the employer. Such discharge is subject to disqualification pursuant to the above cited section of the Law.

24 1323 (D) 1324 (A) (D) No Uniform Enforcement A claimant is one of several lifeguards at a pool. At an initial training session all lifeguards, including the claimant, were instructed to remain at their poolside posts, unless permitted to leave by the head lifeguard. Although claimant knew of this rule, he also knew that other lifeguards left the pool without permission on a regular basis. The claimant left the pool without permission and was discharged. If you establish that the employer did not uniformly enforce the rule, then the claimant is not subject to disqualification pursuant to 25(e)(2) of the Law. You discharged the claimant for a knowing violation of a reasonable rule regarding. Since the rule was not uniformly enforced, the claimant is not disqualified pursuant to the above cited section of the Law HEALTH OR BUSINESS IMAGE RULES Employers may establish reasonable rules that include standards of hygiene, mode of dress, or personal appearance. These standards are reasonable when they involve the health, safety or welfare of employees or of the public, or exist to protect and preserve a particular business atmosphere or image to patrons. (A) Knowing Violation of a Reasonable and Uniformly Enforced Rule An employer in the food industry posted a rule requiring all employees to wear a hair net or hat while preparing food for customers. Although all of the food service employees wore a hair net or hat according to the rule, the claimant knowing about the rule, nonetheless refused to comply with the rule and was discharged. You determine that the rule protected a legitimate employer interest (health concerns and business image) and that the claimant could normally be expected to wear a hairnet while preparing food. The claimant was consciously aware of both his refusal to wear a hat and that such refusal was in violation of the employerʹs rule. Such violation is therefore subject to disqualification pursuant to 25(e)(2) of the Law. You were discharged for which was a knowing violation of a reasonable and uniformly enforced rule of the employer. Such discharge is subject to disqualification pursuant to the above cited section of the Law.