(1) An individual shall be disqualified for violation of an employer's rule whenever the employee knew or had reason to know (as an ordinarily prudent person) of the rule, either having been made aware thereof by the employer or through common knowledge; provided, however, no employee shall be disqualified for violating any rule, order or instruction unless the same shall be lawful and reasonably related to the job environment and job performance. Such factors as inconsistency of prior enforcement, unlawfulness and unreasonableness of the rule may be proven by the individual to show that the individual is entitled to benefits. In instances in which there is a dispute as to the true cause of discharge, the claimant shall be afforded the opportunity to challenge or rebut the employer's version of the facts as to the stated reason for the discharge. The employer has the burden of persuasion as to the true cause of discharge.
(2) In determining whether an individual should be disqualified for benefits under OCGA Section 34-8-194(2), the Commissioner shall consider the factors as set out in (a) through (f) below. In each instance, the warning factor shall not be essential, but may be considered under the totality of circumstances; the absence of a warning may likewise be considered, particularly with respect to mitigation of an offense committed by an employee. In each instance, the Commissioner shall not be limited to a consideration of the factors enumerated herein but may consider such other factors as the totality of circumstances dictates. Once an employer has met its burden of proof with respect to a failure of a claimant to obey rules, orders or instruction or to perform the duties for which he was employed, the Commissioner shall consider any of these factors in mitigation of the offense, action or inaction of the employee.
(a) Where the employee was discharged for absenteeism or tardiness, the Commissioner shall consider:
1. The employer's policy on absenteeism or tardiness and whether the policy was communicated to the employee;
2. Whether the employee had been absent or tardy on prior occasions and had been warned about absenteeism or tardiness;
3. What the employer's policy is with respect to notice of the absence or tardiness and whether the employer was properly notified by the employee;
4. The reason(s) for the absenteeism or tardiness;
5. The frequency of the absenteeism or tardiness; and
6. Whether, upon consideration of the totality of circumstances which surrounded the absences or tardiness, the employee was at fault in the discharge.
(b) Where the employee was discharged for a violation of rules, orders, instructions or failure to discharge the duties for which employed, the Commissioner shall consider:
1. The manner in which the rules, orders, instructions or duties were made known to the employees including, but not limited to, whether or not the rules were posted or otherwise published prior to the incident causing discharge;
2. Whether a violation of the rules, orders, instructions or duties occurred;
3. Whether the employee failed to discharge the duties for which employed;
4. Whether the violation or the failure to discharge duties was a result of the employee's fault, intentional conduct, conscious neglect or misconduct as defined in these Rules;
5. The extent of the infraction;
6. The impact of the infraction on the employer's operation.
(c) Where the employee was discharged for property loss or damage, the Commissioner shall consider:
1. Whether the behavior that caused the loss or damage was due to negligence on the part of the employee or was due to intentional conduct on the part of the employee;
2. Whether the employee had been warned (the warning factor is not essential to a disqualification but shall be weighed in light of the circumstances);
3. The extent and amount of the loss or damage;
4. Other aggravating or mitigating circumstances. NOTE: Although a disqualification will be imposed if the loss or damage was found to be the fault of the claimant but there was no evidence of intentional conduct, for a disqualification to be imposed under the provisions of OCGA Section 34-8-194(2)(A)(ii)(I), the Commissioner must determine the act was intentional and the loss or damage amounted to $2,000.00 or more;
(d) Where the employee was discharged for intentional conduct which results in bodily injury to the employer, fellow employees, customers, patients, bystanders or the eventual consumer of products, the Commissioner shall consider:
1. Whether the act was intentional;
2. The extent of the physical harm resulting from the act;
3. Any other aggravating or mitigating circumstances (e.g., past provocation; the warning factor is not essential but shall be weighed in light of the circumstances); and
4. The foreseeability of the injury as a result of the act.
5. The term "bystanders" shall include anyone who was legally entitled to be in such close proximity to the location of the occurrence of the act as to be physically injured. The term "bystanders" could include, but shall not be limited to, governmental officials, independent contractors or other persons.
NOTE: Although a disqualification will be imposed if the act by the claimant was found to be the fault of the claimant but there was no evidence of intentional conduct, for a disqualification to be imposed under the provisions of OCGA Section 34-8-194(2)(A)(i)(I), the Commissioner must determine the act was intentional;
(e) Where the employee was discharged for engaging in a physical fight or threatening behavior on the employer's premises or while on the job under the provisions of OCGA Section 34-8-194(2)(A)(i)(I), the Commissioner shall consider:
1. Whether or not the discharged employee used a weapon;
2. Whether or not anyone was injured;
3. The extent of any provocation to or threat to the discharged employee; and
4. Whether or not the discharged employee had been involved in fighting on the employer's premises on prior occasions and had been warned about fighting.
NOTE: Although a disqualification will be imposed if the act by the claimant was found to be the fault of the claimant but there was no evidence of intentional conduct, for a disqualification to be imposed under the provisions of OCGA Section 34-8-194(2)(A)(i)(I), the Commissioner must determine the act was intentional.
(f) Where the employee was discharged for the falsification of employer records, the Commissioner shall consider:
1. Whether the omission/misstatement was intentional;
2. Whether the omission/misstatement was material; and
3. Information or documentation with respect to proof of citizenship as required by, or in compliance with, the Federal Immigration Reform and Control Act of 1986 including any subsequent amendments to said Act and applicable state laws.
(3) Federal law protects freedom of expression through the First Amendment and it protects an employee's right to protest hours, working conditions and job safety under the National Labor Relations Act and other legislation. A claimant may not be disqualified for action protected under federal law.
O.C.G.A. Secs. 34-8-70, 34-8-150, 34-8-158(2), 34-8-191.
