Restaurant Employee Skips Work Often
In June 2015, “Morgan” was hired by the Golden Corral restaurant in Rapid City. Her duties included working as a cashier, cleaning, serving customers, and emptying ice buckets. At the beginning of her employment, absenteeism was not a problem. That changed in the summer of 2016.
One day, Morgan fainted while at work, and the employer sent her home to recover. After the episode, Morgan’s absences increased. Approximately five or six times per month, she claimed that she had scheduling conflicts due to personal issues or that she needed to leave work because of an illness or to assist her mother. Golden Corral would have to scramble to make arrangements to cover her shift.
Morgan’s absences persisted well into the autumn of 2016. In November, she injured her knee after slipping on ice, which prevented her from working. In January 2017, she claimed that she injured her knee again when she slipped and fell outside her home. During her shift the same day, she claimed that it was difficult for her to perform her job duties, especially carrying and emptying ice buckets. As a result, she declined to carry the buckets and requested to leave work early because of her knee pain. The employer granted her request.
Less than 2 years after hiring Morgan, Golden Corral became disillusioned with her and decided it was time to part ways. It discharged her because of poor attendance, which resulted in her neglecting her job duties. Following her termination, Morgan applied for unemployment insurance benefits, which were granted on April 4, 2017. Golden Corral appealed the decision, claiming Morgan was not entitled to benefits.
Employer Insists on Misconduct
The main issue was whether Morgan was disqualified from receiving unemployment benefits because she engaged in work-related misconduct. An administrative law judge (ALJ) cited SDCL § 61-5-14.1, which defines misconduct as:
- A failure to obey orders, rules, or instructions or failure to discharge the duties for which an employee was employed;
- A substantial disregard of the employer’s interests or the employee’s duties and obligations to the employer;
- Conduct evincing such willful or wanton disregard of the employer’s interests as is found in deliberate violations or disregard of standards of behavior that the employer has a right to expect of the employee; or
- Carelessness or negligence of such degree or recurrence as to manifest equal culpability or wrongful intent.
In applying that standard, the ALJ determined that the employer did not establish willful or deliberate wrongdoing by Morgan and that her conduct did not constitute carelessness or negligence tantamount to willful and intentional misconduct. The ALJ went on to say that Morgan was unable to perform her duties in January 2017 because of her knee injury. The ALJ explained that the injury caused her to leave work before the conclusion of her shift:
While Claimant also did not complete her shifts during previous periods [referring to Morgan’s knee injury in November 2016], Employer acquiesced to at least part of these absences, and it does not appear Employer took any disciplinary action against [her] for these absences prior to [her] discharge.
All employers know the frustration of chronic employee absenteeism. However, this case shows that it is important for employers to pick their battles, even if they believe an employee is “working the system.” In fact, the South Dakota Supreme Court has ruled that the purpose of unemployment compensation is to relieve the stress of economic insecurity due to unemployment. As a result, unemployment statutes should be liberally construed in favor of employees to afford the relief the South Dakota Legislature intended to provide.
When dealing with employee absenteeism and the possibility of disputing a terminated employee’s unemployment insurance claim, make sure you have a good understanding of the statute that governs the issue. Also, weigh the costs and benefits of disputing a claim. Speaking with employment law counsel will give you more knowledge on whether to dispute an unemployment insurance claim.
Kassie McKie Shiffermiller is an attorney at Lynn, Jackson, Shultz & Lebrun, P.C. and an editor of South Dakota Employment Law Letter. She can be reached at email@example.com. Kresten Hendrix is a summer associate in Lynn Jackson’s Rapid City office. He will graduate from the University of South Dakota School of Law in May 2018.