A Missouri Republican wants to broaden the definition of on-the-job misconduct in order to help employers fight bogus unemployment claims.
Missouri state Sen. Will Kraus (R-Lee's Summit) introduced a bill earlier this year that would allow employers to say a worker engaged in misconduct "regardless of whether the misconduct occurs at the workplace or during working hours." In addition, breaking an employer's rules would constitute misconduct under the bill whether a worker knows the rules or not; state law currently defines misconduct as when an employee deliberately breaks an employer's rules.
Kraus said his bill was inspired by tales of workers getting fired for bad behavior and claiming benefits. He said a constituent who runs a business helping employers appeal unemployment claims told him a worker got fired for falling asleep on the job, but received benefits anyway.
"Another one got mad, violently cleared off a filing cabinet, got fired for that, got unemployment benefits for that," Kraus said. "Another one urinated off a school building and got unemployment benefits for that. If a child saw that individual peeing off a school building, he could have been put on a sex offender registry."
The bill is one of many pushed by Republican state lawmakers across the country aimed at changing unemployment insurance benefits. Maine is mulling a bill to deny benefits to laid off workers who have remaining vacation pay, while Arizona and South Carolina are considering legislation to make claimants prove they're not on drugs. Georgia recently approved drastic reductions in the duration of benefits. The U.S. Congress, for its part, cut the duration of federal benefits earlier this year.
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The Missouri proposal is similar to one that became law in Florida last year. The Sunshine State defines misconduct as "any action that demonstrates conscious disregard of an employer’s interests and is found to be a deliberate disregard or violation of reasonable standards of behavior, and may include activities that did not occur at the workplace or during working hours," according to the state Agency for Workforce Innovation.
In all states, there are situations in which something an employee does outside of work can be considered job-related misconduct that disqualifies them for benefits, according to George Wentworth, a senior staff attorney with the National Employment Law Project. Examples of off-the-job behavior that could qualify as misconduct include a cop who breaks the law while off duty or a school bus driver who gets convicted for selling drugs to kids.
Many states base their definitions of misconduct on a 1941 decision by the Wisconsin Supreme Court, according to a Labor Department memo (PDF): "Misconduct...is limited to conduct evincing such willful or wanton disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree as to manifest an equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer."
Florida's law is on the frontier, Wentworth said, because it gives employers leeway to regulate off-the-job behavior at the outset by explicitly saying the behavior doesn't have to have occurred during work hours or on work premises. The Kraus bill is similarly broad.
"In every state, there are cases in which something a claimant does off the job is so related to the employer's interest and damaging to the employment relationship that the law recognizes it as disqualifying misconduct," Wentworth said. "But those cases are on the periphery and typically require employers to justify why the employer has an interest in what the employee is doing off the job."
He continued, "It's always problematic when you start making public policy that proceeds on the premise that it's OK for the employer to regulate a worker's private life."
Wentworth said the Florida law has been on the books for too short a time to evaluate its impact on workers, but it's possible employers could use it to deny benefits for workers fired because of things they say on social media.
Private sector and government employers provoked an uproar last month when the Associated Press reported they'd been asking job applicants to cough up Facebook passwords, much to the dismay of worker and civil liberties advocates. Maryland lawmakers reacted with a bill to ban the practice.
In an interview, Missouri's Kraus initially said his legislation wouldn't broaden the definition of misconduct to include behavior off the job. "The bill pretty much says misconduct during work hours," he said.
Pressed on this, he acknowledged after re-reading the bill that it says misconduct doesn't have to happen during work hours. "You're correct," Kraus said. "I'm reading the language and you're correct."
But he wouldn't say how far the bill could reach, or if the misconduct provision might apply to a worker's behavior on social media.
"I'm not an attorney and I'm not gonna go down this this that that, because I'm not going to be able to justify what a lawyer would do," Kraus said. "People that are let go because of the downslide, they're going to get unemployment. They're entitled to it. But the people that do have misconduct like the things I've mentioned need not to get the benefits."
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