April 2018 Briefly: An Unemployment Case Analysis

unemployment case

Case Analysis: Claimant Discharged for Theft, but Allowed Benefits by ALJ


The claimant was discharged for theft. She was allowed benefits upon a finding that she was discharged, but not for misconduct connected with the work. The employer appealed, and a hearing was scheduled before an administrative law judge (ALJ).

At the Hearing

The Employer’s Evidence: The claimant was employed as an assistant manager in a retail store.  The employer testified that the claimant was discharged after the employer discovered that the claimant had stolen $100.  After being confronted about the missing funds, the claimant submitted a handwritten statement admitting to the theft and reimbursed the employer for the missing money.  The claimant told the employer she was using the money for moving expenses.  The claimant had received the employer’s policies upon hire, and was charged with enforcing them. Therefore, she was aware that the theft was grounds for termination from employment.

The Claimant’s Evidence:  The claimant denied that she stole the money.  She testified that she was coerced into writing her admission statement and coerced into giving the employer $100.  She testified that she had taken only $10, which she testified was for gas money.

The Hearing Decision

The administrative law judge (ALJ) found that the claimant was discharged, but not for misconduct connected with the work, and she was allowed benefits. The ALJ found that the claimant had only “misappropriated” $10 and that her actions were not so severe as to rise to the level of misconduct.  The employer appealed, arguing that the claimant’s testimony in the hearing regarding being coerced to sign the admission and repay the funds was not credible and should not have been the basis of a finding of fact.  The employer also argued that theft from the employer was intentional and rose to the level of misconduct connected with the work.

The Board of Review Decision

The Board of Review (BOR) disagreed with the ALJ’s Decision and reversed the decision.  The BOR found that the claimant’s theft from the employer was a breach of the duty the claimant owed the employer of good faith and fair dealing.  The claimant took money from the employer deliberately and did not ask the employer to borrow any money, or report the theft.  Her actions were deliberately dishonest and rose to the level of misconduct connected with the work, and she was disqualified from benefits.                                                                                                


  1. A single incident of theft, even of an insignificant amount, can rise to the level of misconduct connected with the work. In this case, the administrative law judge found that the claimant had “misappropriated” only $10. The Board of Review did not change that finding of fact, but was able to disqualify the claimant under state law.  Even if a claimant stole a small thing, or a small amount of money, you can argue that the claimant’s actions were a breach of the trust that must be in place in the employer/employee relationship. Theft is a deliberately dishonest act and is almost always considered to be disqualifying misconduct.
  2. The Board of Review is generally charged with reviewing the record and determining if the ALJ made the right decision under the law.* In this case, the ALJ, who observed the parties during testimony and who examined the evidence, found that the claimant’s testimony about being coerced to sign the admission and pay the $100 was sufficiently credible to make findings of fact based upon it. The BOR found the ALJ’s facts supported by the hearing record and was bound by those facts in making its decision.  The decision the BOR had to make was whether the ALJ’s finding that the “misappropriation” of the $10 was not disqualifying misconduct was correct.  In this case, the BOR was able to reverse the decision because theft is generally considered to be misconduct. The decision the BOR made in this case was that the ALJ’s decision was contrary to state law.  In BOR appeals, the argument an employer should make is that the ALJ made an incorrect decision under the law.  Boards of Review don’t generally* reweigh the facts of a case.  In this case, the employer successfully argued that the ALJ’s decision to allow benefits was incorrect. (*There are very few exceptions – please contact your unemployment consultants with questions about your case and your state.)
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About Peg Elofson

Peg oversees our Unemployment Hearing Consultants. She has more than 15 years of experience in the unemployment industry, with particular focus in unemployment appeals. Her experience includes account management, hearing representation, and Board of Review appeals. Peg joined Equifax through the acquisition of TALX Corporation in 2007. She holds BSBA and JD degrees from Creighton University.