13. Was the Conduct in Willful Disregard of the Employer's Interest?

The main issue in misconduct cases is not usually whether misconduct was committed but whether the claimant willfully disregarded the employer’s interest. This determination requires inquiry into the employee’s state of mind at the time the wrongful act was committed; the employee must have known that the act was contrary to the employer’s interest or expectations. This is sometimes framed as a question of intent: Did the employee intend to disregard the employer’s interest?

In establishing state of mind, the history of the employment relationship is important. As a general matter, an employee cannot be found to have the requisite state of mind if the employer had not made the employee aware of its expectations through rules, policies, warnings, instructions, and so forth. Garfield v. Director of the Division of Employment Security, 377 Mass. 94, 98 (1979 (claimant could not have acted in willful disregard where they had no notice of the employer expectation they allegedly violated).

Further, a claimant may not have acted in willful disregard of the employer’s interest where the employer previously condoned similar behavior by the claimant or other personnel. BR-0071 3085 48 (1/14/22) (claimant did not act in willful disregard of employer’s interest by playfully making an obscene gesture at a coworker where evidence showed other coworkers were not disciplined for engaging in similar conduct in the workplace); BR-0066 8290 72 (2/1/22) (claimant’s failure to provide employer a doctor’s note when out sick was a good- faith lapse in judgment and does not constitute willful disregard of the employer’s interest, particularly where a supervisor had told the claimant a note was not required for previous absences).

If, however, the conduct at issue is clearly wrongful, such as theft or falsification of records, a claimant may be found to have acted in willful disregard even in the absence of explicit instructions not to engage in the conduct. Jorgenson v. Dir. of the Div. of Emp't Sec., 394 Mass. 800, 477 N.E.2d 1005 (1985) (falsifying pay records); Babize v. Dir. of the Div. of Emp't Sec., 394 Mass. 806, 477 N.E.2d 1009 (1985) (same). Where an allegation of theft or misappropriation of funds is the basis for discharge, the employer must provide “substantial and credible evidence or proof” that the theft or misappropriation occurred and that the claimant was involved in the theft. BR-124433 (7/18/14).

Where obviously intentional conduct is present, the court will not require specific state‑of‑mind findings. Grise v. Dir. of the Div. of Emp't Sec., 393 Mass. 271, 471 N.E.2d 71 (1984) (claimant left at beginning of shift after learning he would be working with supervisor with whom he had personality conflict); Sharon v. Dir. of the Div. of Emp't Sec., 390 Mass. 376, 455 N.E.2d 1214 (1983) (claimant publicly insulted supervisor, then refused to apologize publicly).

A claimant’s open “bad attitude” may facilitate a finding of willful disregard. Lycurgus v. Dir. of the Div. of Emp't Sec., 391 Mass. 623, 462 N.E.2d 326 (1984) (claimant discharged for tardiness after warnings where he had stated to supervisor that he was not required to be at work until 9:00 a.m. “on the dot”).

An employee who reasonably believes that their disobedience of an order is required to further a more important purpose of the employer is not acting in willful disregard of the employer’s interest. See Jones v. Dir. of the Div. of Emp't Sec., 392 Mass. 148, 465 N.E.2d 245 (1984) (employee who continued to work on deadline, although ordered not to do the work, not disqualified although he had previous warning for insubordination). Similarly, a worker who is discharged for refusing to follow an order that requires them to violate state or federal law is not disqualified. AH c. 8, § 1F. 12.

Even if the claimant is aware of an expectation and their judgment is erroneous, good-faith errors or negligence do not constitute willful disregard of the employer’s interest. Garfield v. Dir. of the Div. of Emp't Sec, 377 Mass. 94, 384 N.E.2d 642 (1979) (rearranging the store schedule without notifying district manager); BR 106310 (7/16/08) (Key) (claimant’s negligent failure to check a catheter does not result in disqualification, notwithstanding the gravity of the error); BR-1994619 (1/17/14)claimant mistakenly believed his commute by public transportation would not be affected by a holiday bus schedule); BR-0067 0771 90 (11/29/22) (while claimant was aware of employer’s expectation that employees immediately report feeling symptoms that could be attributed to COVID-19, their failure to report a headache they believed was attributable to another cause was a good-faith lapse in judgment and did not constitute willful disregard of the employer’s interest).

Personnel policies known to the employee are probative evidence regarding the claimant’s state of mind. An employee’s reliance on these policies, where they may contradict other statements of the employer, can be used to show a lack of willful disregard. Goodridge v. Dir. of the Div. of Emp't Sec., 375 Mass. 434, 377 N.E.2d 927 (1978) (employee left to file discrimination charge with Equal Employment Opportunity Commission where he thought personnel handbook gave permission to do so; employer claimed he left without permission).

Mitigating Circumstances

The presence of mitigating circumstances should be explored and presented in both misconduct and rule violation cases. If employees' misconduct is attributable to mitigating circumstances, then they have not acted in willful disregard. In the case of an employee fired for being late after a prior warning, for example, there is no willful disregard if the lateness was due to an extraordinary circumstance, such as sudden illness of a family member, other parenting obligations, or employer protocols which delay the claimant. BR-0046 9244 74 (1/21/22) (claimant’s discharge was not disqualifying where there were mitigating circumstances for their tardiness; namely, claimant’s parental obligations and employer COVID-safety protocols which contributed to the claimant’s tardiness).

Similarly, falling asleep on the job is not disqualifying if occasioned by mitigating factors. Wedgewood v. Dir. of the Div. of Emp't Sec., 25 Mass. App. Ct. 30, 514 N.E.2d 680 (1987); Lengieza v. King,  Deputy Dir. of Emp't & Training, Chicopee District Court, CA 9920 CV 0421 (1999)(same). In Wedgewood, the Appeals Court held that the employee's unwillingness to discuss his personal problems with his supervisor, to take a leave of absence, to accept counseling, or to institute a union complaint were not sufficient bases for the denial of UI after the employee was discharged for sleeping on the job, when personal problems caused him to be unusually fatigued. The Court noted that although the employee's reluctance to discuss his personal problems or to accept help from the employer or union did not serve his long-term interests, such reluctance did not constitute deliberate misconduct in willful disregard of his employer's interest under G.L. c. 151A, § 25(e)(2).

The breakdown of the claimant’s car plus lack of cell phone with which to contact employer are mitigating circumstances for tardiness, since they show that there was no intent to engage in misconduct. BR-122720 (7/18/14). The Board held that a claimant's failure to clean two assigned rooms because of the elate linen delivery was due to mitigating circumstances. BR-0031 6005 36 (2/7/20). 

The Board found that the combination of a claimant’s homelessness and the last-minute refusal of the expected ride to work from her friend only 20 minutes before the claimant was scheduled to leave for work, making her frantic and causing her to forget to call the supervisor to report that she would be late to work, constituted mitigating circumstances of her failure to call in. BR-124425 (7/24/14). Similarly, the emotional trauma of the recent death of the mother of the claimant’s fiancé, which affected the claimant’s ability to read her schedule properly and thus arrive at work on time, was found to be a mitigating factor beyond the control of the claimant. BR-124136 (7/25/14).

In one matter, a bus driver suffering from an enlarged prostate, having been stuck in unusually heavy traffic, urinated publicly to avoid wetting himself. The Board of Review found that circumstances sufficiently mitigated the claimant’s actions. BR-1178833 (11/4/13).

The Board found a mitigating factor beyond claimant’s control where a claimant’s doctor—in order to treat emergency patients—rescheduled an appointment relating to the claimant’s returning to work after medical leave until after the employer’s deadline for claimant’s return. BR-125549 (11/7/13).

Any discharge due to circumstances resulting from domestic violence, including the need to address the physical, psychological, and legal effects of domestic violence, is not disqualifying; for example, a claimant discharged for violating the attendance policy due to incidents of domestic violence or due their need to seek treatment or protection. G.L. c. 151A, § 25 (e), ¶ 7; AH c. 6, § 3; BR 0031 4269 81 (2/19/20) (finding absence cannot be considered deliberate misconduct where claimant’s tardiness and absences were caused by domestic violent relationship constituting mitigating circumstances) (See Question 33 for discussion of domestic violence in separation cases).