Current through December 12, 2024
In order to establish that an individual was discharged or
suspended for a knowing violation of a reasonable and uniformly enforced rule
or policy of the employer, when reasonably applied, the Administrator must find
all of the following:
(a)
Knowing Violation. To find that an individual engaged in a single
knowing violation of a rule or policy of the employer, the Administrator must
find that:
(1) the individual knew of such
rule or policy, or should have known of the rule or policy because it was
effectively communicated to the individual. In determining whether the rule or
policy was effectively communicated to the individual, the Administrator may
consider the manner in which the rule or policy was communicated. Evidence of
the employer's actions, including but not limited to, posting of the rule or
policy within the company at a place likely to be observed by the employees;
explanation of the rule at a training or orientation session; verbal
explanation of the rule to the individual; distribution of a document to the
individual which contained the rule or policy; warnings or other disciplinary
action; and evidence of the individual's receipt of any document containing the
rule or policy should be considered in determining whether the rule or policy
was effectively communicated by the employer to the individual;
(2) the individual's conduct violated the
particular rule or policy; and
(3)
the individual was aware he was engaged in such conduct.
(A) If the rule or policy requires an
intentional act, the Administrator must inquire into the individual's intent to
violate such rule or policy.
(i) An example of
a rule or policy that requires an intentional act is a rule prohibiting
falsification or deliberate misrepresentation of an employer's business
records.
(b)
Reasonable Rule or Policy.
To find that a rule or policy instituted by an employer is reasonable, the
Administrator must find that the rule or policy furthers the employer's lawful
business interest. The administrator may find an employer rule or policy to be
reasonable on its face. For example, a rule prohibiting fighting in the
workplace is reasonable on its face. When evidence is offered to demonstrate
that the rule or policy is unreasonable, the Administrator may consider
whether:
(1) the rule or policy was
reasonable in light of the employer's lawful business interest. Examples of
reasonable rules or policies that further the employer's lawful business
interest may include, but are not limited to, a rule or policy prohibiting
eating at the employee's work station to ensure office cleanliness; and a rule
or policy requiring employees to wear a hair net or hat while preparing food
for customers for health reasons; and
(2) there is a clear relationship between the
rule or policy, the conduct regulated and the employer's lawful business
interest.
(c)
Uniformly Enforced. To find that a rule or policy of the employer
was uniformly enforced, the Administrator must find that similarly situated
employees subject to the workplace rule or policy are treated in a similar
manner when a rule or policy is violated.
(d)
Reasonable Application. To
find that a rule or policy of an employer was reasonably applied, the
Administrator must find:
(1) that the adverse
personnel action taken by the employer is appropriate in light of the violation
of the rule or policy and the employer's lawful business interest;
(A) An example of an adverse personnel action
that is appropriate in light of the violation of a rule or policy prohibiting
tardiness is an individual's discharge or suspension for habitual tardiness
without reasonable excuse after warnings.
(B) An example of an adverse personnel action
that is not appropriate in light of the violation of the rule or policy is an
individual's discharge for violating a dress code policy, one time, by wearing
a skirt that is one inch shorter than that allowable by the policy;
and
(2) that there were
no compelling circumstances which would have prevented the individual from
adhering to the rule or policy. Examples of circumstances which are of a
compelling nature include, but are not limited to, serious weather-related
problems, rules which are contradictory or require actions that are illegal or
improper, rules the adherence to which could result in injury to the health or
safety of an individual or other objectively verifiable circumstances which are
of a compelling nature.
(e)
Incompetence. To find that
the violation of a rule or policy of the employer is a result of the
individual's incompetence and therefore is not wilful misconduct, the
Administrator must find that the individual was incapable of adhering to the
requirements of the rule or policy due to a lack of ability, skills or
training, unless it is established that the individual wilfully performed below
his employer's standard and that the standard was reasonable.
(1) Examples of a violation of a rule or
policy due to incompetence include, but are not limited to, an employee who is
required to perform at a certain level of word processing proficiency, but who
fails to perform at such level because he does not have the requisite skills,
training or experience; and an employee who is required to meet the employer's
standard requiring employees to assemble 20 widgets per hour, but who fails to
meet such standard because he is physically unable to meet those
requirements.
