August 2017 Briefly: An Unemployment Case Analysis


The claimant was discharged for violating an employer policy. The claimant was disqualified from benefits upon a finding that she was discharged for misconduct connected with the work. The claimant appealed. A hearing was scheduled before an administrative law judge.

At the Hearing

The Employer’s Evidence: The claimant was discharged for violating an employer policy. The employer required its employees to park in a designated area which was paid for by the employer. Other parking was available for customers and visitors. The claimant parked in a visitors’ lot on one occasion and received an email informing her that if she parked in that lot again her car would be towed. On a second occasion, the claimant parked in a visitors’ parking garage. An administrative assistant validated her ticket, which meant that the claimant would not be required to pay. The employer discovered the incident and discharged her and the administrative assistant. The employer presented the parking policy requiring employees to park in employee parking only and prohibiting validation for employees. The policy carried an effective date of one month beyond the date of the claimant’s discharge.
The Claimant’s Evidence: The claimant testified that on the date of the final incident, she had forgotten the badge used to enter the employee parking area and used the parking garage instead. She used the garage because she knew that the visitors’ lot was off limits after she received the email about parking in the visitors’ lot. She testified that she asked to have her parking ticket validated, and the other employee agreed to do it. She testified that a faulty badge had caused her to park in the same garage before, and her ticket was validated with her manager’s knowledge, but she was not disciplined for it.

The Hearing Decision

The administrative law judge (ALJ) found that the claimant was discharged for misconduct connected with the work, and she was disqualified from benefits. The administrative law judge found that the claimant’s actions were a deliberate violation of a known and reasonable employer policy. The claimant appealed, arguing that she was not aware that her actions could have resulted in her discharge.

The Board of Review Decision

The Board of Review disagreed with the administrative law judge and reversed the decision. The Board found that the employer failed to prove that the claimant was aware that her actions could lead to her discharge. She could not have received the policy which was entered into evidence, and a prior similar incident was allowed without disciplinary action. The claimant could not reasonably have known that her actions could lead to her discharge. The claimant was allowed benefits.


  1. If a claimant has violated an employer rule, the employer has the burden of proving that the claimant was reasonably aware of the rule. In this case, the employer presented a written policy which prohibited the claimant’s actions. Unfortunately, the employer had updated its policies and provided the updated policy instead of the policy which was in effect at the time of the claimant’s violation. The employer proved that a rule existed, but only that it existed after the claimant’s discharge. In similar cases, ensure that any written policies presented as evidence were in effect at the time of the claimant’s violation. Presenting proof that the claimant received the policy is also critical.
  2. A claimant who proves that a rule is not consistently enforced could be allowed benefits. Knowledge that a violation can result in disciplinary action is usually an element that must be proven for a finding of misconduct. A claimant who proves that a prior violation did not result in disciplinary action can successfully argue that she had no knowledge that a subsequent violation could result in disciplinary action. In this case, the claimant proved that her manager was aware of a prior incident she was not disciplined for. In similar cases, be prepared to offer evidence that the claimant was made aware after the first violation that subsequent violations would not be condoned.

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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.