5.5.2 Termination for Misconduct

La. R.S. 23:1601(2) disqualifies a claimant who is found to have been discharged by a base-period or subsequent employer for “misconduct connected with his employment.” The statutory definition of “misconduct,” a list of certain acts or omissions added in 1990, is more restrictive than prior jurisprudential definitions. If taken literally, and applied blindly and by rote, it might effectively preclude most folks from unemployment. Don’t deny help to your client because of it! Remember that the UC law is remedial in nature and must be interpreted in the claimant’s favor.1

Furthermore, the circuits have taken divergent paths when interpreting the present version of the statute. Some expressly interpret the definition of “misconduct” in light of pre-amendment jurisprudence. Others have taken a more restrictive approach. Unless and until the situation is resolved by the Louisiana Supreme Court, be mindful of this issue in deciding whether or not to appeal a district court decision.

Regardless of the circuit, parse the statutory definition carefully because the agency tends to apply it—and tends to encourage the courts to apply it—in an extremely overbroad manner. For example, the statutory definition refers to a “violation of policy,” but only of only certain types of policy; the agency tends to ignore the qualifier and erroneously posit that any policy violation—no matter how trivial or inadvertent—is disqualifying misconduct.

Even if the client’s alleged behavior or omission might meet the statutory definition, the employer has the burden to prove disqualifying misconduct with competent evidence. Thus, even if the agency disqualified your client at application, your client should still win if the employer fails to participate in the subsequent appeal hearing or if the only evidence against your client is incompetent evidence such as hearsay.

Finally, even if you are in an “unfavorable” circuit, when you are parsing the “misconduct” definition in La. R.S. 23:1601(2) and applying it to your client’s facts, successful arguments from prior jurisprudence might still help your client win. The case law is extensive and varied. Be sure to remind any adjudicator of the law’s remedial purpose, while highlighting any favorable circumstances. Some successful arguments or themes that could help if relevant to your client’s facts are:

• The client did not know or understand that policy alleged to have been violated.
• The misconduct was not directly connected with the job.
• The employer’s reason for discharge was something other than the alleged misconduct.
• The totality of circumstances should be considered.
• Your client might have acted in good faith, not intending to harm the employer.
• A single, isolated incident contrasts with your client’s otherwise blameless history.
• A “hot-headed” response to provocation is excusable.
• Poor judgment or simple human negligence are not disqualifying.
• Poor work performance resulted from a simple inability to meet job standards rather than deliberate misconduct.
• There was a reasonable basis for an action or inaction (e.g., an emergency).
• Your client was following common practice or a supervisor’s directive.
• The misconduct was caused by factors beyond a worker’s control (e.g., sickness, childcare failure, transportation emergencies).

• 1See, e.g., Banks v. Administrator, 393 So. 2d 696 (La. 1991); Charbonnet v. Gerace, 457 So. 2d 676 (La. 1984).