Saturday, January 23, 2010


What if you engaged in misconduct at the request of your employer? A recent consultation revealed that the employer requested the employee to engage in a minor criminal act (resulting in no arrest but a criminal violation and fine) but then discharged the employee for misconduct. A review of a case revealed the following:

"A breach of trust resulting in termination of employment constitute misconduct, even though the impropriety (falsifying records to signify usual closing time of a store rather than an actual earlier closing) is sanctioned by claimant's immediate supervisor, who also disregards the employer's interest. (A.B. 53,843-55; A-750-1408)"

But in the consultation, the act was allegedly sanctioned by the owner - would that lead to a different result? In any event, bear in mind the following whenever an employer requests an employee to commit a criminal act. Section 593.4 of the Law provides:

"Criminal acts. No days of total unemployment shall be deemed to occur during a period of twelve months after a claimant loses employment as a result of an act constituting a felony in connection with such employment, provided the claimant is duly convicted thereof or has signed a statement admitting that he or she has committed such an act. Determinations regarding a benefit claim may be reviewed at any time. Any benefits paid to a claimant prior to a determination that the claimant has lost employment as a result of such act shall not be considered to have been accepted by the claimant in good faith. In addition, remuneration paid to the claimant by the affected employer prior to the claimant's loss of employment due to such criminal act may not be utilized for the purpose of establishing entitlement to a subsequent, valid original claim. The provisions of this subdivision shall apply even if the employment lost as a result of such act is not the claimant`s last employment prior to the filing of his or her claim."

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