Allison J. Hartnett

Allison J. Hartnett Associate

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Work Absences Found Not to Be Misconduct For Unemployment Benefits Purposes

A recent decision by the Missouri Eastern District of Appeals found in favor of Pamela Ausley, an individual who had been denied unemployment benefits as a result of her termination for misconduct. The Court held her employer, CCL Label Inc., failed to show that she was at fault for her absences and Ausley was therefore entitled to unemployment benefits.

Ausley began working for CCL in 2015, at which time the company provided each employee with a handbook outlining the Company’s progressive discipline process. While the handbook noted that employees could be assessed points for missed work, which could eventually lead to termination, it did not explain how points were accumulated under the attendance policy or how many absences they were allowed before they could be punished.

During her employment with CCL, Ausley was assessed points on her record for eight absences and even received two written warnings. However, the written warnings failed to reference the points that were assessed against Ausley and failed to reference the Company’s progressive disciplinary process. Ausley’s employment was terminated after she was absent two days following receipt of a final written warning. In October of 2015, she sought unemployment benefits which the Company opposed, asserting she was terminated for misconduct.

Initially, the Missouri Division of Employment Security denied Ausley’s unemployment claim due to her absenteeism. Ausley appealed to the Labor and Industrial Relations Commission, who found in her favor, stating that she had not committed misconduct as defined by law.  The Commission found she had not been sufficiently aware of the company’s attendance policy and she had provided adequate notice for all of her absences but one, ruling that she did not violate a known attendance policy.

The matter then proceeded to the Court of Appeals, who looked into whether, under a 2014 amendment to a Missouri law governing unemployment benefits, Plaintiff’s absenteeism was due to misconduct. Under the statute, a person is not eligible for unemployment benefits if they are “discharged for misconduct connected with claimant’s work.”  The amendment defined misconduct to include violation of a no-call, no-show policy, chronic absenteeism or tardiness in violation of a known policy, or two or more unapproved absences following a written reprimand or warning.

The Court concluded that the Company failed to show that it fully informed Plaintiff of its policy and failed to meet its burden of showing Ausley was issued two unapproved absences following a written warning.  The Court stated “the record evinces confusion and disagreement surrounding how many points were accumulated in Plaintiff’s case and whether Plaintiff could avoid the assessment of points by providing prior notices of her absences.”

Following the holding in this case, it is important for employers in all jurisdictions, not just Missouri, to reexamine their attendance policies and warnings, ensuring that policies are thoroughly spelled out and that employees are notified and reminded of such should they be given a warning.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

 

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