Defining Misconduct and Substantial Fault

Those who have experience with unemployment benefits can attest that the definitions of misconduct and substantial fault are complex. In an unemployment compensation suit employers need to substantiate the termination with evidence that one portion of misconduct or substantial fault occurred. The new Worker's Comp changes look at the same tests to determine if the termination of benefits can apply. It must be proven that one of these violations occurred: 

• Violating a written drug and alcohol policy, reporting to work under the influence of drugs or alcohol
• Theft of employers property, currency, felonious conduct connected to employement or negligent conduct that causes substantial damge to employers property
• Conviction of a crime making it impossible for the employee to perform job duties
• One or more threats or acts of violence and/or harassment at the workplace
• Excessive absenteeism on more than 2 occasions within a 120 day period before the termination
• Excessive tardiness violating employers policy
• Employee falsifies business records
• A willful violation of a federal government, state, or tribal regulation that could result in employer sanctions
• One or more minor infractions of rules
• One or more inadvertent errors made by the employee
• Failure to perform work because of insufficient skill, ability, or equipment

Determining a Qualifying Occurrence 

These new standards for Worker's Comp remain to be tested by case law. Since we are in uncharted waters, we have identified some items and practices adjusters and litigators will be looking at to help you determine if a qualifying instance has occurred:

1. Do you have a current written drug and alcohol policy? If not, this is something you should jump on stat. Want to know more? Refer to, "Wisconsin Employers: New Laws Call for Updated Drug & Alcohol Policies"
2. Do you have a current written policy that defines what qualifies as absenteeism and tardiness? Does it identify how this will be documented? Also, does it identify what you consider fair notice?
3. Do you have a copy of the employee’s acknowledgment that they are being held to these policies?
4. Do you have solid documentation? Like unemployment benefits, you need to have proof that the violation occurred.

The recent Wisconsin Worker's Compensation changes have brought forth many looming questions from HR professionals. For a list of relevant changes and how they may impact you, check out my previous post, "Wisconsin Worker's Compensation Law Braces for Winds of Change".