DLLR's Unemployment Insurance Appeals

 

Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued - Maryland Unemployment Decisions Digest

 

Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued

 

VII. Misbehavior or Poor Attitude on the Job
A discharge for rudeness or poor attitude on the job may result in a finding of gross misconduct, simple misconduct or no misconduct, depending on the circumstances. Generally, disruptive behavior and the use of profane or abusive language have been found to be at least misconduct. Sexual harassment of a coworker has been held to be gross misconduct when the claimant has been told or should have reasonably known that his conduct or speech was offensive.

Generally, sleeping on the job is considered, at the very least, misconduct, because the employee is not performing the duties for which he was hired. However, there are mitigating factors which may at times lead to a conclusion that the employee was not engaged in misconduct. Such factors include the employee taking medication or working long hours. Generally, the claimant will be held to have committed gross misconduct for sleeping on the job if the nature of his position required that the claimant be alert, if the employer has previously disciplined the claimant for similar conduct, or if the claimant deliberately placed himself in a position for the purpose of going to sleep.

 

A. Rudeness or Poor Attitude

 

1. Toward Employer's Clients or Customers
The claimant was discharged for showing up drunk at a customer's home, using bad language, and failing to perform, even after complaints and a warning. This was gross misconduct. Schisler v. E.C. Decker Service, Inc., 780-BH-87.

The claimant was a switchboard operator who supervised other operators. She was discharged due to three incidents of rudeness to customers on the telephone. The claimant admitted that she was the offending operator. The claimant had previously received warnings about this type of behavior. The claimant was discharged for gross misconduct. Butler v. Levenson and Klein, Inc., 494-BR-90.

2. Toward Supervisor

 

a. Gross Misconduct Found
The claimant repeatedly refused to accept the employer's directions and was insubordinate and offensive to the employer in evaluation sessions. The claimant was discharged for gross misconduct. Hagberg v. Liberty Homes, Inc., 135-BH-89.

b. Misconduct Found
The claimant was cooperative and courteous on most occasions. However, on one occasion, she walked out of a counseling session called by her supervisor, even though she had been told that the session was not finished. The claimant was discharged for misconduct. Schoo v. Davis, Garth, et al., 603-BR-90.

c. No Misconduct Found
The claimant was discharged because she asked her supervisor a question at a meeting. The question concerned the wages of entry level employees. It was a reasonable question and was not asked in an insubordinate manner. There was no misconduct. Rayfield v. Elite Communications, 123-BH-90.

 

3. Toward Coworkers

 

a. Gross Misconduct Found
The claimant was discharged for harassment of fellow employees and failure to do his job. This was held to be gross misconduct. Jackson v. Dankmeyer, Inc., 1158-BH-88.

b. Misconduct Found
The claimant was discharged for misconduct where there was a pattern of arguing with his coworkers, which continued in the face of warnings. However, without evidence of the nature of the arguments, who was at fault in initiating them, whether profanity was used, and whether they interfered with the work process, there can be no finding of gross misconduct. Green v. Harford Memorial Hospital, 320-BR-84.

The claimant was discharged for engaging in a shouting match with a security guard hired by the employer. The shouting disrupted the employer's business. The claimant lost her temper and engaged in inappropriate conduct, but did not start the argument. She was seriously provoked by the security guard who blatantly violated orders. This constitutes misconduct. Brooks v. Conston of Maryland, Inc., 377-BR-88.

c. No Misconduct Found
The claimant was discharged for placing a letter on a coworker's car and arguing with that coworker on the employer's lot. The claimant did place the letter on the car, but made an effort to do so in such a way so as not to disrupt the work. The coworker began the argument and persisted despite the claimant's requests that the matter be discussed after work. The claimant was discharged, but not for any misconduct. Ward v. National Car Rental System, Inc., 1194-BR-90.

The claimant was discharged in July, 1991 because the employer felt she had a bad attitude. Only three incidents of actual conduct were cited, one of which occurred in 1985 or 1986 and one of which occurred in 1989. These incidents were too remote in time to reasonably justify a discharge in 1991. In July, 1991, the claimant was discharged after she curtly responded to a coworker's question. The employer failed to show concrete instances in which the claimant's attitude affected her work performance. The one incident in July, 1991 was not misconduct. Beasley v. Genesis Health Ventures, 1477-BR-91.

 

B. Disruptive Behavior

 

1. In General
The deliberate spreading of false rumors that certain classes of employees were to be laid off, done for the purpose of harming morale, by an employee in a fairly high position, constitutes gross misconduct. Noble v. The Bees Distributing Company, Inc., 672-BR-85.

The claimant's deliberately disruptive behavior, even where influenced by a borderline personality disorder, was gross misconduct. Richard v. DHMG Laboratories Administration, 422-BR-88.

2. Profane or Abusive Language
Where the claimant had been allowed to disagree openly with the employer, but this time used an obscenity in the course of the argument, the discharge was for simple misconduct, not gross misconduct. Shird v. F and H Contractors, Inc., 185-BH-88.

The claimant had been previously warned about having heated arguments with the supervisory staff. The employer later attempted to serve the claimant with a warning and suspension notice after she was observed removing an object from a patient's room. The claimant became abusive and loud. She used foul language, attempted to snatch some papers out of her supervisor's hand, left the office without permission and continued loud, abusive remarks, disturbing others who were in their offices. This was gross misconduct. Barnes v. St. Luke Lutheran Home, Inc., 235-BR-88.

The claimant had previously been warned about using inappropriate language in the work place. Subsequently, the claimant began a loud, accusatory argument with the owner, without any provocation, in a setting where other employees and a supervisory person could hear. The claimant was discharged for gross misconduct. Reed v. Saval Foods Corporation, 15-BR-91.

3. Horseplay
The claimant manager's discharge was for simple misconduct where he allowed two employees to engage in a friendly whipped cream fight on the employer's premises, but after work hours. Punt v. Taco Bell Restaurant, 247-BR-85.

The claimant was discharged for engaging in horseplay and accidentally hurting others who were equally to blame. This was misconduct. Washington v. Direct Marketing Associates, 500-BH-88.

 

C. Sexual Harassment
The claimant was discharged for repeated and persistent sexual harassment of other employees. This was gross misconduct. Keegan v. Valspar Corporation, 527-BH-89.

The claimant was discharged for refusing to submit to the sexual advances of her supervisor. There was no misconduct. Bailey v. Tom Curro Lincoln Mercury, Inc., 821-BH-87.

Where the claimant was never given any indication that his attentions were not wanted, he did not engage in sexual harassment. There was no misconduct. Polston v. Johns Hopkins Hospital, 220-BH-89.

The claimant is entitled to be told that his conduct or speech is deemed offensive by his coworkers before he can be accused of sexual harassment, unless the conduct or speech is so blatant that any reasonable person would be offended. White v. Steven Windsor, Inc., 2079-BR-92.

D. Sleeping on the Job

 

1. In General
The claimant was found asleep on the job three times. She was warned two times, and on the last occasion, was given a chance to go home early but declined and fell asleep again. This was gross misconduct. Bradley v. Liberty Medical Center, Inc., 706-BR-89.

The claimant deliberately backed his fork lift into a corner in an attempt to hide so he could sleep on the job. No mitigating facts were found which might explain the claimant's falling asleep on the job. This was gross misconduct. Taylor v. Fort Howard Cup Corporation, 1215-BR-91.

There is always a question about exactly how deliberate the act of falling asleep on the job is. In this case, the claimant's history of rule violations, plus his failure to take advantage of a second chance given him by the supervisor to stay awake that night amounted to gross misconduct when he was again found sleeping on the job that same night. Hawkins v. Charles County Commissioners, 1053-BR-93.

The claimant, a hospital telephone operator who handled, at times, emergency calls, intentionally laid down on the floor with a pillow and jacket and fell asleep. This was held to be gross misconduct. Ingram v. Union Memorial Hospital, 1680-BR-93.

2. Mitigating Circumstances
A security guard falling asleep on the job is generally regarded as gross misconduct. However, mitigating factors do arise in exceptional circumstances. In this case, the claimant had recently worked an unusually high number of hours at the employer's request and his falling asleep was unintentional. While the responsibility for staying awake lies with the claimant, this particular failure lacks deliberateness, and therefore warrants a lesser finding of simple misconduct. Harris v. BPS Guard Services, Inc., 563-BR-92.

 

E. Cooperation with Internal Investigation
The claimant was discharged after he lied to his supervisor when directly questioned about a conflict of interest in his office and attempted to cover up the conflict rather than inform his superiors. This was gross misconduct. Schneider v. Civil Service Commission, 256-BH-85.

The claimant's walking out of a meeting with the company investigator, after being given a choice to talk to same, does not constitute misconduct. Gamble v. Levenson and Klein, 546-BH-83.

The claimant failed to disclose her assets as part of an investigation, lied to investigators and violated a direct order of an investigator. This was held to be gross misconduct. Nicholson v. Coca Cola Company, 571-BH-88.

 

VIII. Illegal, Dishonest, Fraudulent or Unethical Conduct on the Job
Threats of physical violence against supervisory personnel or coworkers generally constitute simple or gross misconduct. In the case of Department of Economic & Empl. Dev. v. Owens, 75 Md. App. 472, 541 A.2d 1324 (1988), the threat of violence against a supervisor, though not made directly to the supervisor and not accompanied by any physical action, constituted gross misconduct and disqualified the employee from unemployment benefits.

Under the law prior to 1993, the striking of a coworker, unless done in reasonable self-defense, was gross misconduct. However, under the 1993 version of Section 8-1002.1, this type of behavior constituted aggravated misconduct if it was intentional conduct that resulted in a physical assault upon or bodily injury to another person in the work place. Under the amended Section 8-1002.1, effective October 1, 1995, a physical assault on a coworker could constitute aggravated misconduct if it was done with actual malice and a deliberate disregard for the property, safety or life of others and if it was so serious that the penalties of misconduct or gross misconduct are insufficient.

An employee's alteration of time cards is generally at least simple misconduct, unless the alteration was done mistakenly. The employer's bare assertion that there are cash shortages is insufficient to prove misconduct. However, gross misconduct will be found where cash over which the claimant has sole control disappears and the claimant provides no reasonable explanation.

Under the law prior to 1993, theft from the employer was always considered gross misconduct. Under the 1993 version of Section 8-1002.1, this type of behavior could constitute aggravated misconduct if it was intentional conduct by an employee in the work place that resulted in property loss or damage to the property of the employer, coworkers and other individuals. Under the amended Section 8-1002.1, effective October 1, 1995, theft from the employer could constitute aggravated misconduct if it was done with actual malice and deliberate disregard for the property of others and if it consists of property loss or damage so serious that the penalties of misconduct or gross misconduct are insufficient.

Falsification of an employment application is generally misconduct, but the degree of misconduct (simple or gross) depends upon the materiality of the information falsified. Misrepresentations deemed material include those concerning an employee's educational qualifications or his criminal record.

 

A. Assaults and Threats

 

1. Threats

 

a. In General
During a discussion about previous misconduct, the claimant made a statement to the effect that, "This was the kind of incident that made people go home to get their shotguns." The claimant clearly made the statement to produce fear in his supervisor's mind and it was, therefore, a threat. The claimant's action constitutes gross misconduct. Zimmerman v. Goucher College, 625-BR-84.

The claimant, who threatened to kill his supervisor, was under psychiatric treatment for severe emotional problems. Due to this, his behavior constitutes simple misconduct and not gross misconduct. Everett v. Department of Health and Human Services, 25-BH-87.

The claimant had animosity toward another employee. The employer held a meeting with the claimant and the other employee for the specific purpose of clearing up this matter. At the meeting, the claimant initiated threats of physical violence against the other employee. This constitutes gross misconduct. Miller v. Computer Sciences Corporation, 562-BR-87.

b. Use of Weapons
The claimant was discharged for possessing a knife at work and brandishing it while making threatening statements. This was gross misconduct. Smith v. Bethany House, Inc., 732-BR-89.

The employer had a clear rule prohibiting weapons on company property. The claimant brought a weapon concealed on his person onto company property in violation of the rule. Although he didn't brandish the gun, or threaten anyone with it, the claimant created the possibility of an extremely volatile situation by bringing the gun on the premises. The fact that the gun was unloaded is immaterial. The claimant made the employer's work environment unsafe, showing a gross indifference to the employer's interests. This constitutes gross misconduct. Parker v. Showell Poultry, Inc., 998-BR-91.

 

2. Assaults

 

a. In General
The striking of a coworker, unless done in reasonable self-defense, clearly meets the definition of gross misconduct. Nelson v. Wyman Park Health System, Inc., 389-BH-84.
Although the claimant was initially struck by another employee, the claimant's attempt to continue to fight, despite orders to stop and efforts to physically restrain the claimant, constitutes gross misconduct. Goodall v. Holy Cross Hospital, 507-BR-84.

Serious verbal provocation by a coworker does not prevent physical assault by the claimant from being gross misconduct. Alston v. Phillips Harborplace, 707-BH-86.

b. Self-Defense
An individual may use nondeadly force in self-defense anytime he reasonably believes that unlawful force is about to be used against him. This is true even where one is defending himself against an attack by his superiors on the job. Winchester v. Joseph J. Hock Company, 232-BH-83.

The claimant was discharged for repeatedly hitting his employer in self-defense in an assault which was initiated by the employer. The claimant's actions caused multiple injuries to the employer. Under the circumstances, the claimant overreacted and used more physical force than was reasonable or necessary to defend himself and his actions constitute misconduct. However, the employer was clearly the initial aggressor and therefore, the claimant's actions do not constitute gross misconduct. Sacco v. Jones Associates, 146-BH-84.

The claimant was verbally accosted by a coworker who was determined to provoke a fight with her. The coworker physically attacked the claimant who attempted to free herself, but did not hit the coworker. Reasonable acts of self-defense do not constitute gross misconduct, nor does one mild statement of retort made by the claimant. Forman v. Associated Catholic Charities, 935-BR-91.

Where the claimant was knocked to the floor and pushed against the wall several times, her striking out in self-defense was not misconduct, even where it violated a company rule. Castle v. W.D. Byron and Sons, Inc., 675-BR-93.

The claimant's supervisor confronted him in a verbally abusive manner and physically assaulted him. The claimant knocked away the supervisor's hand when he attempted to make physical contact with the claimant. The claimant did nothing more than any reasonable person would have done. The claimant's action of self-defense does not rise to the level of misconduct under Section 8-1003. Bourgeois v. General Motors Corporation, 3593-BR-94.

 

3. Patient Abuse
The claimant's violation of a strict rule which prohibited employees from leaving a patient unattended in the bathtub constituted gross misconduct, particularly due to the potential danger to the patient. Brown v. Garrison Valley Center, Inc., 27-BH-85.

The claimant was a direct care aide at a long-term care facility for mentally retarded and disabled persons. A housekeeper for the employer observed the claimant beating a patient with a tennis racquet, kicking the patient on the head and chest and engaging in this conduct for a half-hour. This was gross misconduct. Jackson v. Rosewood Center, 314-BH-88.

The claimant was suspended from her job as a home health aide at a senior citizen retirement community due to her continuing pattern of abusive behavior toward patients. These acts included verbal abuse, aggressive treatment, leaving a patient in a wheelchair for long periods of time, failing to feed a patient, grabbing a walker away from a patient and threatening to shut the door on a patient. These actions constitute gross misconduct. Morten v. Lorien Home Health Care Agency, 556-BH-91.

The claimant, a bus driver and activity aide for nursing home patients, left the patients on the bus in the parking lot of a Wal-Mart for 35 to 45 minutes while she did some personal shopping at that store. It was a hot day in August. The claimant's conduct was gross misconduct. Dancy v. Carroll Lutheran Village, 293-BR-93.

 

B. Alteration of Time Cards

 

1. Gross Misconduct Found
The claimant was discharged for falsifying his time sheet in order to hide his lateness. This was gross misconduct. Wilton v. Department of Health, 685-BR-89.

The claimant knowingly altered his time cards on two occasions in an attempt to receive more wages than he had earned. After the first incident, he received a reprimand and a suspension. The claimant was discharged for gross misconduct. Gieryic v. Tri-State Motor Transit Company, 140-BR-90.

The claimant allowed several pay periods to be documented indicating that she had worked days in those pay periods which she in fact had not worked. The claimant received payment for these days. The claimant took no action to correct this situation. This was gross misconduct. Blackwell v. Maryland Training School, 581-BH-91.

Leaving the workplace without punching out on the time clock is a falsification of work records. Thomas v. Deaton Hospital and Medical Center, 1131-BR-93.

2. Misconduct Found
Upon return from her vacation, during which the claimant's hours were changed slightly, the claimant reported later than the time she wrote on her time sheet. Considering the confusion caused by the changes in the claimant's schedule, her actions constitute misconduct under Section 8-1003, but do not rise to the level of gross misconduct. Addison v. Woodward and Lothrop, 620-BR-84.

The claimant violated the employer's rule by signing his own time card because his supervisor had forgotten to do so, but the claimant did not falsify the time. This was misconduct. Williams v. Department of the Army, 428-BR-87.

3. No Misconduct Found
The claimant mistakenly punched a coworker's time card with his own, although the coworker had left for the day. There was no prohibition against punching another employee's time card. The claimant was discharged, but was given no warnings. The evidence was insufficient to show that the claimant's action was more than a mistake and no disqualification was imposed. Hartman v. Polystyrene Products Company, Inc., 164-BH-83.

 

C. Cash Shortages

 

1. In General
The claimant was discharged for four shortages in a cash drawer shared with other individuals where the claimant did not count and was never instructed to count the cash in the drawer. The evidence was insufficient to support a finding of misconduct. Fox v. Brother's Place, 171-BH-84.

The claimant bank teller deliberately and willfully tore the tape of two transactions out of her machine, strictly against company audit regulations. This action made untraceable a loss of money to her employer. The claimant had been previously warned on several occasions for various breaches of bank regulations. This was gross misconduct. Cooper v. Carrollton Bank of Baltimore, 338-BH-85.

Money ($900.00), over which the claimant had sole control, disappeared, and the claimant did not report to work or contact the employer for several days. The claimant did not report the shortage and had been warned for shortages in the past. The employer met its burden of proving deliberate gross misconduct by proving that money over which the claimant had sole control disappeared and that the claimant disappeared at the same time. The burden then shifted to the claimant to provide any reasonable explanation for these events, but he failed to do so. Stout v. Laurel Race Course, 1030-BH-85.

2. Agreement to Indemnify Employer
The Fair Labor Standards Act, and its regulations, provide that deductions for shortages cannot be made from the wages of gasoline service station workers if such deductions bring the employee's remuneration below the minimum wage. Hatfield v. Tri-State Oil, 390-BR-82.

 

D. Theft

 

1. From Employer
Although the claimant did not misappropriate for herself any money from the employer's petty cash fund, she did repeatedly forge the names of company officials on the authorization forms without their knowledge or approval in violation of company policy. Deliberate misuse of the employer's petty cash fund, even if done for reasons other than personal gain, is gross misconduct. Decker v. Maryland Cup Corporation, 347-BR-87.

The claimant paid herself out of the register, but this was a practice condoned by the employer. There was no misconduct. Reno v. Lorenzo's, Inc., 434-BR-88.

The claimant purchased merchandise for himself from the employer and discounted the price of the merchandise below the regular ten percent employee discount, even though it was not on sale at the time. He did not have his supervisor's approval to do this. The claimant was well aware of the company policy that strictly forbade such an action. The claimant was discharged for gross misconduct. Angel v. Service Merchandise Company, Inc., 57-BH-90.

The claimant admitted that he pled guilty to forging credit slips for customers and pocketing the cash which the customers gave him. The claimant's lawyer submitted an Alford plea, which is a guilty plea, entered upon voluntarily, with full knowledge of the crime alleged and of the possible consequences of pleading guilty to it. The judgment of guilty entered after such a plea can be used as evidence, in an unemployment insurance case, that the claimant actually did the act alleged. The claimant was discharged for gross misconduct. Hanlin v. Jake's Service Station, 1213-BR-90.

Selling confidential information from the employer's files is gross misconduct in itself, even if the claimant was unaware of the scheme by which this information was going to be used to perpetrate a massive fraud on credit card companies. Eaddy v. Hertz Corporation, 83-BH-92.

2. From Customers or Coworkers
The claimant, who deliberately overcharged customers and failed to turn in all the money collected, was discharged for gross misconduct. Boardman v. Creative Hairdressers, Inc., 241-BH-87.

The claimant failed to deliver a paycheck to a subordinate employee and instead converted it to her own use. The claimant offered no reasonable excuse for doing this. This was gross misconduct. Coward v. Federal Express Management, 21-BR-89.

On more than one occasion, the claimant received rent money from tenants in the housing project where she worked, but neither turned in the money to management nor credited the tenants as having paid. She issued tenants phony receipts. As a result, some tenants were scheduled for eviction. The claimant was discharged for gross misconduct. McNair v. Housing Authority of Baltimore, 1111-BH-89.

3. Misappropriation of Employer's Property
The claimant removed a piece of steel shelving from the employer's premises with his supervisor's permission and was later discharged for theft. The employer failed to meet its burden of proving that the claimant's actions constituted theft. Rather, the claimant's termination resulted from a misunderstanding and no disqualification was imposed. Bass v. Harbor Construction, Inc., 87-BH-83.

The claimant nursing home worker took unused cartons of milk from the trays used to feed patients. The unused cartons would normally be thrown away, but the taking home of such food was strictly against the employer's policy. The patients, in fact, had been complaining about not getting their milk. This was gross misconduct because the employer's intended disposition of the property did not make it abandoned property, and the employer's policy was designed to discourage the very type of activity in which the claimant was engaged. Pittman v. Meridian Nursing Center, 878-BR-86.

The claimant paid off a personal debt to a customer by misappropriating six of the employer's knives and exchanging them with the customer in order to cancel his personal debt. This deliberate misappropriation of the employer's property is gross misconduct. Banks v. Adams-Burch, Inc., 906-BH-87.

The claimant was discharged for unauthorized use of the employer's computer equipment and materials, unauthorized conduct of personal business while on duty, insubordination and misuse of administrative/judicial procedures. The claimant used the employer's equipment to generate more than 100 documents for the claimant's personal use. This was done despite a memorandum from the employer prohibiting this type of activity and a warning from the claimant's supervisor. The claimant was discharged for gross misconduct. Hanlon v. Department of Commerce, 759-BH-89.

The claimant worked as a project manager at a janitorial service company. The claimant instructed one of the employer's employees to report to a specific work site which was not affiliated with any of the employer's clients, and to perform work at this site with the employer's equipment, materials and supplies. The claimant also authorized payment to the individual performing such services from the employer's payroll department, knowing that the assignment of the individual to this particular project was for the sole and direct benefit of the claimant's own janitorial services company. The claimant was discharged for gross misconduct. Hart v. Eagle Maintenance Service, Inc., 677-SE-90.

 

E. Destruction of Property

 

1. Employer's Property
The claimant's deliberate destruction of company property constitutes gross misconduct. Patterson v. Mack Trucks, 188-BH-84.

The claimant was terminated for destroying property of the employer's subcontractor during a labor dispute. This was a deliberate interference with a subcontractor doing business with the employer and was precisely designed to harm both the employer and the subcontractor. This was gross misconduct. Chabot v. Wolmendorf, Inc., 719-BR-83.

2. Customer's or Client's Property
The claimant removed several checks to closed account customers, valued at over one-half million dollars, from the bank and threw them away in an effort to rid himself of his backlog. This was gross misconduct. Roux v. Maryland National Bank, 301-BH-84.

3. Coworker's Property
The claimant, who deliberately damaged a coworker's car on the employer's premises, was discharged for gross misconduct. Chase v. General Motors Corporation, 138-BH-87.

 

F. Competition with Employer's Business
The employer knew when it hired the claimant that the man to whom she was engaged worked for a company with competitive interests. The claimant assured her employer that she would not share any information about her employer with her future husband. When she told a coworker of a job opportunity at the company where her husband worked, and the employer found out that the coworker applied for the job, the claimant was discharged. The claimant violated a duty to her employer to refrain from any actions or discussions that could be a conflict of interest between her husband's company and the employer. The claimant's actions constitute misconduct, but not gross misconduct, as there was no evidence that she intended to, or even caused, any harm to her employer. The claimant was not competing with her employer, was not being compensated by another employer, and was not using or revealing any information she had received in confidence as a result of her job. Franklin v. Printers II, Inc., 140-BH-86.

The claimant, who was general counsel and general manager for the employer, engaged in giving legal advice to a potentially competitive company being formed by a coworker. After the coworker resigned, the claimant misled the employer with regard to her knowledge of his activities. When specifically asked about the possibly competitive business, the claimant refused to answer, citing attorney-client privilege. The claimant violated a duty of loyalty to the employer by putting herself in a position whereby she could not even advise her employer of the potentially competitive activities of its ex-employee. This was gross misconduct. Ruscitella v. Theriault's, Inc., 396-BR-86.

The claimant breached his duty of loyalty to the employer by contacting a company for which the employer was an exclusive distributor in order to inquire about the claimant becoming a distributor himself. The prohibition against competing with one's employer is not limited to competition for the employer's customers. Competition for a valuable exclusive distributorship held by the employer is also a serious breach of the duty of loyalty owed by an employee to an employer. The claimant was discharged for gross misconduct. Law v. Sporting Angler, Inc., 372-BR-90.

The claimant was aware of the employer's requirement that the claimant needed the employer's prior approval in order for the claimant to do any side jobs similar to the type of work he did for the employer. In violation of this requirement, the claimant did numerous side jobs for the employer's customers. The acts of the claimant were in direct competition with the employer. The claimant was discharged for gross misconduct. Price v. Automatic Security Systems, Inc., 779-BH-90.

The claimant deliberately passed information about one of the employer's customers to a competitor. The claimant was discharged for gross misconduct. Jones v. Cellular One Custom Center, 1275-BR-90.

G. Misuse of Position
The claimant was employed as an addictions counselor in a mental health center and worked with clients who had drug problems. The claimant used his position of authority to demand money from clients of the mental health center. This amounts to gross misconduct. Kimble v. Glass Mental Health Center, 1206-BH-91.

The claimant put a note on the desk of a person who contracted with her employer, attempting to get her daughter a job. The claimant knew that the person was exceptionally susceptible to pressure from her employer. The claimant's deliberate misuse of her employment position in order to gain benefits for herself from a contractor is gross misconduct. Kinter v. Baltimore Gas and Electric Company, 1484-BH-92.

H. Falsification of Employment Application
The claimant's deliberately misleading statement to the employer concerning his experience and ability to perform the dangerous job of crane operator constitutes gross misconduct. Faudree v. C.M. Anderson's Crane Service, Inc., 819-BR-83.

The claimant bank teller responded in the negative to a question on the employment application which asked if she had ever been convicted of a crime. The claimant had appealed a previous District Court conviction to the Circuit Court, where it was placed on the stet docket and therefore, the claimant believed that the conviction did not stand. There is no disqualification under Section 8-1002 or 8-1003 since the claimant's belief was factually correct. Furthermore, a statement is not a "falsification" when the person making the statement honestly believes that he or she is telling the truth. Karim v. Union Trust Company, 136-BH-84.

On the claimant's job application, he answered "No" to a question asking whether he had ever been convicted of any offense against the law. Subsequently, the employer learned that the claimant had a prior conviction for receiving stolen goods. The claimant resigned in lieu of discharge. This was gross misconduct. A falsification of a criminal record is more serious than misrepresenting one's age and is always material. Johnson v. Minneapolis Postal Data Center, 83-BH-89.

The claimant was discharged because he allegedly falsified his job application by failing to volunteer detrimental information about his past life. However, the employer did not ask any questions about this. As long as the information which the claimant submits is truthful, he has no obligation to offer additional information not requested by the employer. The employer is in control of the information flow in this situation. If the employer does not ask a question, it cannot expect it to be answered. There is no misconduct in the claimant's failure to volunteer detrimental information about his past life. Darby v. Buckingham Correctional Institution, 607-BR-91.

While falsification of an employment application is misconduct, the degree of misconduct (simple or gross) depends on the materiality of the information falsified. Discharge by a prior employer for embezzlement is a highly material factor when applying to work in a bank, and the claimant should have disclosed this fact. Her failure to do so was gross misconduct. Hill v. First National Bank, 1958-BR-92.

Where the claimant made no specific false statement on her application or in her interview about her work experience, the fact that she displayed confidence at her interview that she could perform the job tasks comfortably, then later became nervous when faced with the actual tasks, is not proof of a false statement, and does not amount to misconduct. Hamby v. Seth H. Lourie, et al., 118-BR-93.

The claimant was not under any obligation to his new employer to reveal on his application unsubstantiated false allegations made against him at a previous job. Vassallo v. Loyola Federal Savings Bank, 1468-BR-93.

I. Falsification of Other Work Records
The claimant had been previously warned about failing to complete his route and failing to properly record his contacts with the households he was supposed to be visiting. He had also been specifically warned not to make up "not at home" cards in advance of actually determining whether anyone was home. The claimant was discharged for making false entries on his computer, indicating that he had visited a number of houses but no one was home. This was gross misconduct. Younger v. Washington Suburban Sanitary Commission, 259-BH-91.

J. Lying to Employer
The claimant was discharged for fabricating an on-the-job injury to collect workers' compensation benefits. This was gross misconduct. Shivery v. Slagle's Construction Company, Inc., 438-SE-88.
The claimant deliberately accused her supervisor of stealing her paycheck when she knew that this was not true and then reported this to the police. The claimant was discharged for gross misconduct. Wilson v. Department of Agriculture, 680-BR-90.

The claimant was on the employer's premises but absent from his actual duty post (the building he was supposed to be cleaning). He had time to clean the buildings, but did not do so. When questioned by his supervisor, the claimant lied, informing his supervisor that he had cleaned the buildings. Although the claimant had a valid excuse for not cleaning the buildings on that particular day, there was no excuse for not reporting the problem and lying to his supervisor. This was gross misconduct. Robinson v. Realty Investment Company, Inc., 853-BR-90.

The claimant called in sick when he was not sick. He also requested that the employer lie to the authorities at the detention center. The claimant was discharged for gross misconduct. Conaway v. Oxford Realty Services Corporation, 51-BR-91.

The claimant was granted jury leave, but the jury duty did not materialize. The claimant took the leave but did not tell the employer that there was no jury duty. The claimant should have either reported to work or changed his leave to a different type of leave. This deceitful conduct violated the employer's rules and amounts to gross misconduct. Since there was no property loss to the employer, the conduct does not amount to aggravated misconduct. Winston v. Glenelg Country School, Inc., 1803-BR-93.

After alcohol and drug rehabilitation at the employer's expense, the claimant signed the employer's substance abuse policy which stated that he was to remain sober. Subsequently, the claimant was arrested for possession of a controlled dangerous substance. His wife called the employer and requested his vacation time for a "family emergency" stating that he had to go to Florida immediately. If the employer had been told the real reason for the absence, the claimant would have been terminated. Using legitimate vacation time under false and misleading circumstances with little or no notice to the employer is a deliberate and willful disregard of standards of behavior that the employer has a right to expect and constitutes gross misconduct. Herche v. Rock-Tenn Company, 329-BR-94.

K. Miscellaneous
The claimant's possession of a handgun, on the employer's premises, was in violation of the employer's rules and contrary to state law, and therefore constitutes gross misconduct. Hill v. Baltimore Box Company, 2073-BR-83.

The claimant correctional officer was suspended pending charges for removal for aiding the escape of inmates by providing blades and hacksaws. This was gross misconduct. Martz v. Maryland State Department of Personnel, 324-BH-85.

The claimant was discharged for knowingly driving the employer's vehicle without a valid license. This was gross misconduct. Collins v. Kronheim Company, Inc., 992-BR-89.

 

Discharge - Sections 8-1002, 8-1002.1, 8-1003 continued