Current through Register Vol. 63, No. 9, September 1, 2024
(1)
(a) As
used in ORS 657.176(2)(a), (b) and
(c) and sections (1) through (5) of this rule
the term "work" means the continuing relationship between an employer and an
employee. An employment relationship exists even in circumstances where the
work performed is not subject employment as set forth in ORS Chapter 657. This
section does not apply where no employment relationship exists because the
worker is an independent contractor or operating an independently established
business. With the exception of the provisions of ORS
657.221(2)(a),
the date an individual is separated from work is the date the employer-employee
relationship is severed. In the case of individuals working for temporary
agencies, employee leasing companies, or under a governmental program where a
state agency serves as the employer of record for individuals performing home
care services, the employment relationship shall be deemed severed at the time
that a work assignment ends.
(b) In
the case of absence due to labor dispute, the employee is separated from work
on the date there is a complete dissociation from all participation in the
labor dispute and no re-employment rights are claimed.
(c) As used in this rule, "wantonly
negligent" means indifference to the consequences of an act or series of
actions, or a failure to act or a series of failures to act, where the
individual acting or failing to act is conscious of his or her conduct and knew
or should have known that his or her conduct would probably result in a
violation of the standards of behavior which an employer has the right to
expect of an employee.
(d) As used
in this rule, the following standards apply to determine whether an "isolated
instance of poor judgment" occurred:
(A) The
act must be isolated. The exercise of poor judgment must be a single or
infrequent occurrence rather than a repeated act or pattern of other willful or
wantonly negligent behavior.
(B)
The act must involve judgment. A judgment is an evaluation resulting from
discernment and comparison. Every conscious decision to take an action (to act
or not to act) in the context of an employment relationship is a judgment for
purposes of OAR 471-030-0038(3).
(C) The act must involve poor judgment. A
decision to willfully violate an employer's reasonable standard of behavior is
poor judgment. A conscious decision to take action that results in a wantonly
negligent violation of an employer's reasonable standard of behavior is poor
judgment. A conscious decision not to comply with an unreasonable employer
policy is not misconduct.
(D) Acts
that violate the law, acts that are tantamount to unlawful conduct, acts that
create irreparable breaches of trust in the employment relationship or
otherwise make a continued employment relationship impossible exceed mere poor
judgment and do not fall within the exculpatory provisions of OAR
471-030-0038(3).
(e) For purposes of this rule, "compelling
family reasons" means:
(A) Domestic violence,
as defined in OAR 471-030-0150, which causes the
individual reasonably to believe that the individual's continued employment
would jeopardize the safety of the individual or a member of the individual's
immediate family; or
(B) The
illness or disability of a member of the individual's immediate family
necessitates care by another and the individual's employer does not accommodate
the employee's request for time off; or
(C) The need to accompany the individual's
spouse or domestic partner;
(i) To a place
from which it is impractical for such individual to commute; and
(ii) Due to a change in location of the
spouse's or domestic partner's employment.
(f) As used in OAR
471-030-0150 and this rule, "a
member of the individual's immediate family" includes spouses, domestic
partners, parents, and minor children under the age of 18, including a foster
child, stepchild or adopted child.
(2) The distinction between voluntary leaving
and discharge is:
(a) If the employee could
have continued to work for the same employer for an additional period of time
the separation is a voluntary leaving of work;
(b) If the employee is willing to continue to
work for the same employer for an additional period of time but is not allowed
to do so by the employer the separation is a discharge.
(3)
(a) As
used in ORS 657.176(2)(a) and
(b) a willful or wantonly negligent violation
of the standards of behavior which an employer has the right to expect of an
employee is misconduct. An act or series of actions that amount to a willful or
wantonly negligent disregard of an employer's interest is misconduct.
(b) Isolated instances of poor judgment, good
faith errors, unavoidable accidents, absences due to illness or other physical
or mental disabilities, or mere inefficiency resulting from lack of job skills
or experience are not misconduct.
(c) The willful or wantonly negligent failure
to maintain a license, certification or other similar authority necessary to
the performance of the occupation involved is misconduct, so long as such
failure is reasonably attributable to the individual.
(d) Discharge for "compelling family
reasons," when the individual has made the attempt to maintain the
employer-employee relationship, is not misconduct.
(4) Good cause for voluntarily leaving work
under ORS 657.176(2)(c)
is such that a reasonable and prudent person of normal sensitivity, exercising
ordinary common sense, would leave work. For an individual with a permanent or
long-term "physical or mental impairment" (as defined at
29
CFR §
1630.2(h)) good
cause for voluntarily leaving work is such that a reasonable and prudent person
with the characteristics and qualities of such individual, would leave work.
Except as provided in OAR
471-030-0038(5)(g),
for all individuals, the reason must be of such gravity that the individual has
no reasonable alternative but to leave work.
(5) In applying section (4) of this rule:
(a) If an individual leaves work to accept an
offer of other work good cause exists only if the offer is definite and the
work is to begin in the shortest length of time as can be deemed reasonable
under the individual circumstances. Furthermore, the offered work must
reasonably be expected to continue, and must pay:
(A) An amount equal to or in excess of the
weekly benefit amount; or
(B) An
amount greater than the work left.
(b) Leaving work without good cause includes,
but is not limited to:
(A) Leaving suitable
work to seek other work;
(B)
Leaving work rather than paying union membership dues;
(C) Refusing to join a bona fide labor
organization when membership therein was a condition of employment;
(D) Leaving to attend school, unless required
by law;
(E) Willful or wantonly
negligent failure to maintain a license, certification or other similar
authority necessary to the performance of the occupation involved, so long as
such failure is reasonably attributable to the individual;
(F) Resignation to avoid what would otherwise
be a discharge for misconduct or potential discharge for misconduct;
(G) Leaving work for self
employment.
(c) Good
cause for voluntarily leaving work while on layoff status shall be determined
solely under the provisions of section (4) of this rule without regard to the
provisions of subsections (a) and (b) of this section;
(d) Reduction in rate of pay: If an
individual leaves work due to a reduction in the rate of pay, the individual
has left work without good cause unless the newly reduced rate of pay is ten
percent or more below the median rate of pay for similar work in the
individual's normal labor market area. The median rate of pay in the
individual's labor market shall be determined by employees of the Employment
Department adjudicating office using available research data compiled by the
department.
(A) This section applies only
when the employer reduces the rate of pay for the position the individual
holds. It does not apply when an employee's earnings are reduced as a result of
transfer, demotion or reassignment.
(B) An employer does not reduce the rate of
pay for an employee by changing or eliminating guaranteed minimum earnings, by
reducing the percentage paid on commission, or by altering the calculation
method of the commission.
(C) An
employer does not reduce the rate of pay by loss or reduction of fringe
benefits.
(D) If the Employment
Department cannot determine the median rate of pay, the provisions of OAR
471-030-0038(4)
apply.
(e) Reduction in
hours: If an individual leaves work due to a reduction in hours, the individual
has left work without good cause unless continuing to work substantially
interferes with return to full time work or unless the cost of working exceeds
the amount of remuneration received;
(f) Where the gravity of the situation
experienced by the individual results from his or her own deliberate actions,
to determine whether good cause exists, the actions of the individual in
creating the grave situation must be examined in accordance with the provisions
of section (4) of this rule.
(g)
Leaving work with good cause includes, but is not limited to, leaving work due
to compelling family reasons.
(6) As used in ORS
657.176(2)(d) and
(e), the term "work" means the performance of
services for which remuneration, compensation or wages is intended to be
received or earned. Good cause as used in ORS
657.176(2)(d) and
(e) is such that a reasonable and prudent
person, exercising ordinary common sense, would refuse to apply for available
suitable work when referred by the employment office or accept suitable work
when offered by the employer. For an individual with a permanent or long-term
"physical or mental impairment" (as defined at
29 CFR Sec.
1630.2(h)) good cause is
such that a reasonable and prudent person with the characteristics and
qualities of such individual, would refuse to apply for available suitable work
when referred by the employment office or accept suitable work when offered by
the employer. In determining disqualification under this section, consideration
shall be given to suitable work factors and exceptions as set forth in ORS
657.190 and
657.195.
Publications: Publications referenced are available from the
agency.
Statutory/Other Authority: 657.260, 657.265, 657.610 &
ORS 657.176
Statutes/Other Implemented: ORS
657.176 & ORS
410.619
