Unemployment Benefits 2

If you were fired, discharged, or laid off from your job, you may be eligible for unemployment benefits. However, if you were fired for "misconduct," you will be disqualified for unemployment benefits for a penalty period and must meet certain other requirements which the Employment Division will explain to you.

What is being "fired" or "discharged?"

If you were willing to continue working but your employer would not allow it, you were fired or discharged. If you refused to continue working, you would be found to have quit.

What is "misconduct?"

"Misconduct" has a special meaning in unemployment law. Misconduct is defined by Oregon law as:

... a willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee. An act or series of actions that amount to a willful or wantonly negligent disregard of an employer's interest is misconduct. 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. 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.

Oregon Administrative Rule (OAR) 471-30-038(3).

In other words, misconduct is something which shows a deliberate disregard of your employer's interests or something you purposely did which hurt your employer's business.

There are too many examples of what has been found to be or not to be misconduct by the Employment Division in the past to list them all here, but a few examples of the most common situations might help you.

When is misconduct usually found?

1. If you repeatedly violated reasonable work rules;
2. If you deliberately disobeyed a reasonable work order or request;
3. If you were tardy or absent from work, did not call in, and knew that was grounds to be fired; or
4. If you started fights, were drunk, stole property, or committed a felony on the job.

In most cases, unless what you did violated a common sense rule, your employer must have warned you that your behavior could cause you to lose your job before you can be denied benefits due to misconduct. For example, it is a rule of common sense that you cannot be drunk at work, so no warning is required. But if you are to be fired if you are late to work too many times, the employer must tell you what the rule is ahead of time

When is misconduct usually not found?

1. If you have a single instance of bad judgment;
2. If you made a mistake;
3. If you try but can't do the tasks required for the job or if you can't do them well enough; or
4. If you have an unavoidable accident.

While a violation of "unreasonable" company rules may not be considered misconduct, be careful if you want to claim that a company rule is unreasonable. Generally, a company rule is only considered unreasonable if it does not comply with reasonable safety practices.

An important point

Oregon law requires the employer to prove your misconduct. Without getting too technical, this means that the employer has to present enough facts to show that what you did was misconduct. The Judge will weigh the evidence to see if the employer has proven this. This is why it is extremely important that you put your best foot forward and present your best case at the hearing. Even if your employer does not show up, you should still explain your position to the best of your ability.

You may be able to avoid a finding of misconduct if you can show that:

1. You did not do what the employer accuses you of doing;
2. Your actions did not hurt your employer's interests; or
3. This was an isolated instance of poor judgment or an innocent mistake.

You may also need to show that:

1. You had never been warned about your behavior;
2. You were not aware of the company policy you violated; or
3. Other employees were not fired for similar behavior, so you did not know the rule was being enforced.

If you read the pamphlet entitled "Unemployment Benefits 4: Representing Yourself at a Hearing," you should be able to handle your own hearing. Good Luck! Unemployment.2.wpd (7/00)

The statutes referred to can be found in the Eugene Public Library, and in the Lane County Courthouse located at 125 E. 8th Avenue, Eugene, Oregon, 97401.

Click here to view Oregon Revised Statutes online.

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