Unemployment Insurance

ORS 657.176
Grounds and procedure for disqualification

  • exceptions
  • rules


Grounds and procedure for disqualification; exceptions; rules.

(1)

An authorized representative designated by the Director of the Employment Department shall promptly examine each claim to determine whether an individual is subject to disqualification as a result of a separation, termination, leaving, resignation, or disciplinary suspension from work or as a result of failure to apply for or accept work and shall promptly enter a director’s decision if required by ORS 657.267 (Allowing or denying claim). The authorized representative may address issues raised by information before the authorized representative, including but not limited to the nature of the separation, notwithstanding the way the parties characterize those issues.

(2)

An individual shall be disqualified from the receipt of benefits until the individual has performed service in employment subject to this chapter or the equivalent law of another state or Canada or as defined in ORS 657.030 (Employment generally) (2) or as an employee of the federal government, for which remuneration is received that equals or exceeds four times the individual’s weekly benefit amount subsequent to the week in which the act causing the disqualification occurred, if the authorized representative designated by the director finds that the individual:

(a)

Has been discharged for misconduct connected with work;

(b)

Has been suspended from work for misconduct connected with work;

(c)

Voluntarily left work without good cause;

(d)

Failed without good cause to apply for available suitable work when referred by the employment office or the director;

(e)

Failed without good cause to accept suitable work when offered;

(f)

Has been discharged or suspended for being absent or tardy in reporting to work and the absence or tardiness occurred as a result of the unlawful use of any drug unless the person was participating in a recognized drug rehabilitation program at the time of the absence or tardiness, or is so participating within 10 days after the date of the discharge or suspension, and the person provides to the Employment Department documentation of program participation. As used in this paragraph, “unlawful use” does not include the use of a drug taken under the supervision of a licensed health care professional and in accordance with the prescribed directions for consumption, or other uses authorized by the laws of this state;

(g)

Has been discharged or suspended for being absent or tardy in reporting to work and the absence or tardiness occurred as the result of the use of alcohol or cannabis on a second or any subsequent occasion within a period of 12 months unless the person was participating in a recognized alcohol or cannabis rehabilitation program at the time of the absence or tardiness, or is so participating within 10 days after the date of the discharge or suspension, and the person provides to the department documentation of program participation; or

(h)

Has committed a disqualifying act described in subsection (9) or (10) of this section.

(3)

If the authorized representative designated by the director finds that an individual was discharged for misconduct because of the individual’s commission of a felony or theft in connection with the individual’s work, all benefit rights based on wages earned prior to the date of the discharge shall be canceled if the individual’s employer notifies the director of the discharge within 10 days following issuance of the notice provided for in ORS 657.265 (Notice of claim filing to employing unit or agent of employing unit) or 30 days following issuance of the notice provided for in ORS 657.266 (Initial determination of eligibility and amount of benefits), and:

(a)

The individual has admitted commission of the felony or theft to an authorized representative of the director;

(b)

The individual has signed a written admission of the felony or theft and the written admission has been presented to an authorized representative of the director; or

(c)

The felony or theft has resulted in a conviction by a court of competent jurisdiction.

(4)

An individual disqualified under subsection (2) of this section shall have the individual’s maximum benefit amount reduced by eight times the individual’s weekly benefit amount. However, in no event shall the individual’s maximum benefit amount be reduced to less than the individual’s weekly benefit amount unless the individual has previously received benefits during the individual’s benefit year.

(5)

An individual may not be disqualified from receiving benefits under subsection (2)(c) or (e) of this section or under ORS 657.200 (Labor dispute disqualification) if the individual ceases work or fails to accept work when a collective bargaining agreement between the individual’s bargaining unit and the individual’s employer is in effect and the employer unilaterally modifies the amount of wages payable under the agreement, in breach of the agreement.

(6)

For purposes of applying subsection (2) of this section, when an individual has notified an employer that the individual will leave work on a specific date and it is determined that:

(a)

The separation would be for reasons that constitute good cause;

(b)

The individual voluntarily left work without good cause prior to the date of the impending good cause voluntary leaving date; and

(c)

The actual voluntary leaving of work occurred no more than 15 days prior to the planned date of voluntary leaving,
then the separation from work shall be adjudicated as if the actual voluntary leaving had not occurred and the planned voluntary leaving had occurred. However, the individual shall be ineligible for benefits for the period including the week in which the actual voluntary leaving occurred through the week prior to the week of the planned good cause voluntary leaving date.

(7)

For purposes of applying subsection (2) of this section, when an employer has notified an individual that the individual will be discharged on a specific date and it is determined that:

(a)

The discharge would not be for reasons that constitute misconduct connected with the work;

(b)

The individual voluntarily left work without good cause prior to the date of the impending discharge; and

(c)

The voluntary leaving of work occurred no more than 15 days prior to the date of the impending discharge,
then the separation from work shall be adjudicated as if the voluntary leaving had not occurred and the discharge had occurred. However, the individual shall be ineligible for benefits for the period including the week in which the voluntary leaving occurred through the week prior to the week in which the individual would have been discharged.

(8)

For purposes of applying subsection (2) of this section, when an individual has notified an employer that the individual will leave work on a specific date and it is determined that:

(a)

The voluntary leaving would be for reasons that do not constitute good cause;

(b)

The employer discharged the individual, but not for misconduct connected with work, prior to the date of the planned voluntary leaving; and

(c)

The actual discharge occurred no more than 15 days prior to the planned voluntary leaving,
then the separation from work shall be adjudicated as if the discharge had not occurred and the planned voluntary leaving had occurred. However, the individual shall be eligible for benefits for the period including the week in which the actual discharge occurred through the week prior to the week of the planned voluntary leaving date.

(9)

(a) For the purposes of subsection (2) of this section, an individual is considered to have committed a disqualifying act when the individual:

(A)

Fails to comply with the terms and conditions of a reasonable written policy established by the employer or through collective bargaining, which may include blanket, random, periodic and probable cause testing, that governs the use, sale, possession or effects of drugs, cannabis or alcohol in the workplace;

(B)

Fails or refuses to take a drug, cannabis or alcohol test as required by the employer’s reasonable written policy;

(C)

Refuses to cooperate with or subverts or attempts to subvert a drug, cannabis or alcohol testing process in any employment-related test required by the employer’s reasonable written policy, including but not limited to:

(i)

Refusal or failure to complete proper documentation that authorizes the test;

(ii)

Refusal or failure to sign a chain of custody form;
(iii) Presentation of false identification;

(iv)

Placement of an adulterant in the individual’s specimen for testing, when the adulterant is identified by a testing facility; or

(v)

Interference with the accuracy of the test results by conduct that includes dilution or adulteration of a test specimen;

(D)

Is under the influence of intoxicants while performing services for the employer;

(E)

Possesses cannabis or a drug unlawfully or in violation of the employer’s reasonable written policy during work;

(F)

Tests positive for alcohol, cannabis or an unlawful drug in connection with employment; or

(G)

Refuses to enter into or violates the terms of a last chance agreement with the employer.

(b)

(A) Except as provided in subparagraph (B) of this paragraph, an individual is not considered to have committed a disqualifying act under this subsection if the individual, on the date of separation or within 10 days after the date of separation, is participating in a recognized drug, cannabis or alcohol rehabilitation program and provides documentation of participation in the program to the department.

(B)

This paragraph does not apply to an individual who has refused to enter into or has violated the terms of a last chance agreement with the employer.

(c)

It is no defense or excuse under this section that the individual’s separation resulted from alcohol use, cannabis use, unlawful drug use, alcoholism or addiction to cannabis or drugs.

(d)

The department shall adopt rules to carry out the provisions of this subsection.

(10)

For the purposes of subsection (2) of this section, an individual is considered to have committed a disqualifying act when the individual voluntarily leaves work, fails to apply for available suitable work when referred by the employment office or the director or fails to accept suitable work when offered:

(a)

Because the employer has or introduces a reasonable written cannabis-free or drug-free workplace policy that is consistent with subsection (9)(a)(A) of this section;

(b)

Because the employer requires the employee to consent to present or future drug, cannabis or alcohol tests under a reasonable written policy that is consistent with subsection (9)(a)(A) of this section;

(c)

To avoid taking a drug, cannabis or alcohol test under a reasonable written policy that is consistent with subsection (9)(a)(A) of this section; or

(d)

To avoid meeting the requirements of a last chance agreement.

(11)

An individual may not be disqualified from receiving benefits under subsection (2)(c) of this section and shall be deemed laid off if the individual:

(a)

Works under a collective bargaining agreement;

(b)

Elects to be laid off when the employer has decided to lay off employees; and

(c)

Is placed on the referral list under the collective bargaining agreement.

(12)

An individual may not be disqualified from receiving benefits under subsection (2)(c), (d) or (e) of this section or be considered unavailable for purposes of ORS 657.155 (Benefit eligibility conditions) if:

(a)

The individual or a member of the individual’s immediate family is a victim of domestic violence, stalking, sexual assault or intimidation, or the individual believes that the individual or a member of the individual’s immediate family could become a victim of domestic violence, stalking, sexual assault or intimidation; and

(b)

The individual leaves work, fails to apply for available suitable work or fails to accept suitable work when offered in order to protect the individual or a member of the individual’s immediate family from domestic violence, stalking, sexual assault or intimidation that the individual reasonably believes will occur as a result of the individual’s continued employment or acceptance of work.

(13)

For purposes of this section:

(a)

“Adulterant” means a substance that does not occur naturally in urine, or that occurs naturally in urine but not at the concentrations detected. “Adulterant” includes but is not limited to glutaraldehyde, nitrite concentrations above physiological levels, hypochlorite or soap.

(b)

“Drug” means a controlled substance as defined in ORS 475.005 (Definitions for ORS 475.005 to 475.285 and 475.752 to 475.980).

(c)

“Intimidation” means:

(A)

Conduct that, in the determination of the director, more likely than not constitutes the crime of intimidation in the first degree described in ORS 166.165 (Bias crime in the first degree) (2017 Edition) or the crime of intimidation in the second degree described in ORS 166.155 (Bias crime in the second degree) (2017 Edition); or

(B)

Similar conduct, as defined by the director by rule.

(d)

“Last chance agreement” means a reasonable agreement:

(A)

Between an employer and an employee who has violated the employer’s reasonable written policy, has engaged in drug, cannabis or alcohol use connected with work or has admitted to alcohol abuse, cannabis abuse or unlawful drug use; and

(B)

That permits the employee to return to work under conditions that may require the employee to:

(i)

Abstain from alcohol use, cannabis use and unlawful drug use; and

(ii)

Attend and comply with the requirements of a rehabilitation or education program acceptable to the employer.

(e)

“Under the influence of intoxicants” means the level of alcohol, cannabis or unlawful drugs present in an individual’s body exceeds the amount prescribed in a collective bargaining agreement or the amount prescribed in the employer’s reasonable written policy if there is no applicable collective bargaining agreement provision. [1955 c.655 §9 (enacted in lieu of 657.175, 657.180 and 657.185); 1957 c.699 §2; 1959 c.643 §2; 1973 c.398 §2; 1977 c.295 §4; 1979 c.267 §2; 1981 c.5 §2; 1981 c.751 §2; 1982 s.s.1 c.2 §6; 1983 c.190 §1; 1983 c.409 §1; 1983 c.508 §6; 1993 c.778 §12; 1995 c.105 §6; 1995 c.178 §1; 1997 c.249 §201; 1997 c.740 §1; 1999 c.256 §1; 1999 c.1067 §1; 2001 c.144 §1; 2003 c.792 §2; 2005 c.278 §1; 2007 c.324 §1; 2009 c.115 §3; 2017 c.21 §65; 2019 c.168 §1]
Note: “(2017 Edition)” was added editorially to 657.176 (Grounds and procedure for disqualification) (13)(c)(A) because the crime of intimidation in the second degree described in 166.155 (Bias crime in the second degree), and the crime of intimidation in the first degree described in 166.165 (Bias crime in the first degree), were renamed, and the elements of the crimes amended, by sections 1 and 2, chapter 553, Oregon Laws 2019 (Senate Bill 577).

Procedure

Appeals

Burden of proof

Notice

Separation From Employment

Absence

Arguments, threats and fights

Closures

Compensation

Conduct of others

Discrimination

Disobedience

Drugs

Early separation

Evidence

Good cause

Hours of work

Injury

Lack of employment

Misconduct

Noncompetition agreements

Off-duty conduct

Reemployment and refusing employment

Retirement

Strikes

Suitable work

Travel

Voluntary separation

Notes of Decisions

Procedure

Appeals

Denial of unemployment benefits based on finding that library employee voluntarily left work without good cause was improper where issue was raised for first time on appeal. Kuraspediani v. Emp. Div., 38 Or App 409, 590 P2d 294 (1979)

Employment Appeals Board review of determination is de novoand claimant/petitioner had burden of proof. Turnquist v. Employment Division, 72 Or App 101, 694 P2d 1021 (1985)

Evidence that claimant was intoxicated three hours into work shift and prior agreement with employer that positive result on random alcohol test could result in termination was sufficient to show that claimant was working impaired and that conduct was wilful and Employment Appeals Board decision to grant unemployment insurance benefits on ground that claimant had not been "discharged for misconduct connected with work" not rationally related to findings of fact. PGE v. Employment Division, 95 Or App 647, 770 P2d 940 (1989)

Where claimant's ability to work was directly at issue, Employment Appeals Board should have made finding concerning medical report of treating physician stating claimant able to work at time she left her job. Douglas County v. Employment Div., 99 Or App 625, 783 P2d 1019 (1989)

In view of finding by Employment Appeals Board found that claimant left her work station without telling anyone and changed into her street clothes, conclusion that claimant did not voluntarily quit work was not adequately explained. Waddles Restaurants, Inc. v. Employment Div., 99 Or App 709, 784 P2d 115 (1989)

Where Employment Appeals Board concluded claimant was discharged for isolated instance of poor judgment but found claimant had been warned previously about her disposition, conclusion does not bear rational relationship to findings of fact. Waddles Restaurants, Inc. v. Employment Div., 99 Or App 709, 784 P2d 115 (1989)

Where Employment Appeals Board reached same result as referee but on different grounds and its rejection of credibility findings was material to its decision, board must explain its credibility finding by describing how it disagrees with referee. Burns Brothers, Inc. v. Employment Div., 99 Or App 714, 784 P2d 117 (1989)

Where Employment Appeals Board failed to make findings of fact as to which act of misconduct was reason for claimant's termination, conclusion that claimant was discharged for isolated instance of poor judgment is not rationally connected to factual findings. Jackson County v. Employment Div., 99 Or App 719, 784 P2d 119 (1989)

Finding that employer would not allow claimant to continue to work is not supported by substantial evidence because fact that claimant agreed to termination date undermines evidence. J.R. Simplot Co. v. Employment Div., 102 Or App 523, 795 P2d 579 (1990)

Authorized representative's interpretation of Employment Department rule is accorded same deference on review as rule interpretation by department. Johnson v. Employment Dept., 187 Or App 441, 67 P3d 984 (2003), Sup Ct review denied

Burden of proof

Claimant has the burden of going forth with evidence of good cause for leaving employment until he makes a prima facie case. Brother v. Morgan, 17 Or App 435, 522 P2d 1210 (1974); McCain v. Employment Div., 17 Or App 442, 522 P2d 1208 (1974)

Employer has the burden of proving misconduct. Babcock v. Employment Div., 25 Or App 661, 550 P2d 1233 (1976)

Notice

Where Employment Appeals Board has received ex partecommunication, board failed to comply with ORS 183.462 requirement that opposing party be notified and have opportunity to rebut, and court remanded to EAB. Turnquist v. Employment Division, 72 Or App 101, 694 P2d 1021 (1985)

Separation From Employment

Absence

A father's absence for the purpose of caring for his sick children did not constitute misconduct. Scevers v. Employment Div., 26 Or App 659, 554 P2d 575 (1976)

Where claimant waitress's three week departure to attend ailing mother was "authorized" by restaurant hostess who had, during owner's absence on other occasion, authorized extended leave for similar purpose, EAB's determinations that claimant (1) left work without authorization and (2) was not adequately supported by evidence. Balduyck v. Employment Division, 72 Or App 242, 695 P2d 944 (1985)

Arguments, threats and fights

Discharge of employee for arguing with reprimand of fellow employee over union matters was for "misconduct connected with his work." Weirich v. Emp. Div., 19 Or App 479, 528 P2d 105 (1974)

Under the circumstances, fighting while on employer's premises was not "misconduct" under paragraph (2)(a). Georgia-Pacific Corp. v. Employment Div., 21 Or App 135, 533 P2d 829 (1975)

Claimant was discharged for misconduct connected with work, where on two separate occasions within period of less than 2 months claimant threatened fellow employees on employer's premises during work hours in violation of written rule. Lundy v. Employment Division, 34 Or App 265, 578, P2d 476 (1978)

Veneer manufacturing employee who improperly fed dryer, became incensed over reasonable request for foreman, and engaged in argument with foreman during which he insulted him, was discharged for misconduct connected with his work within meaning of this section. Columbia Plywood v. Employment Div., 36 Or App 469, 584 P2d 784 (1978)

Where claimant became incensed over reasonable inquiry by supervisor, insulting, intimidating and later physically threatening supervisor, such action is not isolated instance of poor judgment, but deliberate disregard of employer's interests. Weyerhaeuser Co. v. Employment Div., 103 Or App 143, 796 P2d 385 (1990)

Claimant's use of abusive language followed by repetitious conduct in face of warning to cease was not isolated instance of poor judgment and constituted misconduct connected with work. Halling v. Employment Div., 108 Or App 457, 816 P2d 1173 (1991), Sup Ct review denied

Closures

Where claimants could not go back to work during plant shutdown but could choose either to use their vacation time or take leave without pay for the shutdown period, claimants' decision not to use vacation time did not constitute voluntarily leaving work. Teledyne Wah Chang Albany v. Employment Div., 302 Or 186, 728 P2d 26 (1986)

Compensation

Plaintiff had good cause to leave employment when employer refused to make proper tax deductions from plaintiff's paychecks. Garrelts v. Employment Div., 21 Or App 437, 535 P2d 115 (1975)

De minimis net compensation constitutes good cause for terminating employment. Grigsby v. Employment Div., 24 Or App 499, 546 P2d 788 (1976)

The claimant's minimal income and deteriorating financial situation constituted good cause for leaving work. Bloomfield v. Employment Div., 25 Or App 771, 550 P2d 1400 (1976)

Where employer unilaterally attempted to change wage rate for motor home assembly worker's employment, worker's refusal of substantial reduction in pay did not constitute misconduct. Mathis v. Employment Div., 46 Or App 37, 610 P2d 838 (1980)

For purposes of determining whether work is suitable for individual, ORS 657.190 requires consideration of certain factors, but statute provides that those factors are to be considered "among other factors," and Employment Division had authority to determine by rule that worker who quits job because of wage reduction is not entitled to unemployment benefits if post-reduction wages are comparable to wages earned by majority of workers performing similar work in same locality. Employment Division v. Asher, 86 Or App 350, 739 P2d 69 (1987)

Employee who voluntarily left employment after being paid with check that was not covered with sufficient funds demonstrated good cause for leaving employment, even though employer contacted bank and check was subsequently honored. Cavitt v. Employment Div., 105 Or App 81, 803 P2d 778 (1990)

Conduct of others

Generally, offensive character habits of fellow workers will not constitute good cause for leaving employment. McCain v. Employment Div., 17 Or App 442, 522 P2d 1208 (1974)

An employer's "sexist" attitude will not by itself constitute good cause for leaving employment. McCain v. Employment Div., 17 Or App 442, 522 P2d 1208 (1974)

Student discipline problems did not constitute "good cause" for a grade school teacher to voluntarily terminate employment. Weidert v. Employment Div., 22 Or App 474, 539 P2d 1116 (1975)

Good cause for terminating employment under this section does not include a personality conflict with one's immediate supervisor. Connelly v. Employment Division, 34 Or App 79, 577 P2d 1362 (1978), Sup Ct review denied

Claimant's persistent effort to pursue discussion with assistant manager concerning another employ's improper activities, for which claimant was discharged, constituted isolated instance of poor judgment, and was not discharged due to course of "misconduct" which would disqualify claimant from receiving benefits. Goodwin v. Employment Division, 35 Or App 299, 581 P2d 115 (1978)

Where city employee left work voluntarily because of "sexist" behavior of male coworkers, case was remanded to Employment Division for development of criteria for "good cause" under this section. McPherson v. Employment Division, 285 Or 541, 591 P2d 1381 (1979)

Where waitress-assistant manager left work because employer was unresponsive to her complaints about unsatisfactory food handling and unclean cooking and service facilities, there was substantial evidence for referee to conclude that claimant voluntarily left work without good cause within meaning of this section. Bierly v. Employment Div., 44 Or App 629, 606 P2d 691 (1980)

Where mentally handicapped employee was subjected on job to ridicule and other upsetting comments and had sought assistance of counseling service in handling situation, to no avail, facts did not support conclusion that subsequent leaving of employment was without good cause. Londahl v. Employment Division, 72 Or App 366, 695 P2d 1388 (1985)

Discrimination

Discrimination may constitute "good cause" as used in this section for voluntarily terminating employment. Fajardo v. Morgan, 15 Or App 454, 516 P2d 495 (1973)

Since the record did not show discrimination on account of sex by petitioner's last employer, the finding that she voluntarily left work without good cause was correct. Case v. Employment Div., 20 Or App 66, 530 P2d 531 (1975)

Disobedience

Employee's deliberate disregard of explicit instructions, which resulted in grave risk of property damage and personal damage to third parties, constituted misconduct. Wigant v. Employment Division, 30 Or App 207, 566 P2d 1202 (1977)

Evidence was sufficient to show that welder who refused to work on particular machine, alleging inadequate ventilation and need for respirators, was discharged from employment for misconduct connected with work. Pintok v. Employment Division, 32 Or App 273, 573 P2d 773 (1978)

Where claimant, who was assigned to sweep out mobile homes at end of manufacturer's production line, received numerous warnings about quality of work and ignored employer's instructions, claimant's actions were statutory misconduct as matter of law. Marlette Homes v. Employment Division, 33 Or App 587 (1978)

Welder's refusal to comply with safety regulation by trimming beard to make respirator mask fit snugly constituted misconduct connected with work. Rascoe v. Employment Division, 34 Or App 339, 578 P2d 3 (1978)

Evidence that employee was not required to perform unconscionable acts in course of employment was sufficient to support Employment Appeals Board's finding that claimant voluntarily left work without "good cause." O'Brien v. Employment Division, 35 Or App 773, 582 P2d 841 (1978)

Drugs

Finding that claimant left work out of a fear that drug addiction would be discovered supported the conclusion that claimant left work without good cause. Tolonen v. Employment Div., 25 Or App 575, 549 P2d 1294 (1976)

Off-duty drug use that does not result in actual or likely on-job impairment is not "misconduct connected with work." Glide Lumber Prod. Co. v. Emp. Div. (Smith), 86 Or App 669, 741 P2d 907 (1987)

Claimant discharged after testing positive for cocaine and amphetamines in drug test required by employer was eligible for unemployment benefits because, absent evidence that claimant was under influence of drugs at work or performing unsatisfactorily because of drug use, misconduct resulting in discharge was not connected with claimant's work. Silverton Forest Prod. Co. v. Emp. Div. (Arrant), 86 Or App 684, 741 P2d 915 (1987)

Where claimant for unemployment benefits voluntarily quit job rather than submit to drug test which employer required as part of general policy, determination on remand was required as to whether compliance with drug test requirement left employee no reasonable alternative but to leave work. Glide Lumber Prod. Co. v. Emp. Div. (Coats), 87 Or App 152, 741 P2d 904 (1987)

Claimant's admitted drug use before work, subsequent positive drug test and consequent violation of last-chance agreement with employer was insufficient to deny benefits where no evidence showed that off-duty drug use caused actual on-the-job impairment. Sun Veneer v. Employment Div., 105 Or App 198, 804 P2d 1174 (1991)

Where drug test could not establish time of ingestion and employer could not prove claimant was under influence of or impaired by drugs while on job, claimant was eligible for benefits. Stone Forest Industries, Inc. v. Employment Div., 127 Or App 568, 873 P2d 474 (1994)

Where employer has policy of requiring drug testing after work-related motor vehicle accident, employer need not prove actual impairment for unemployment benefit claimant's positive drug test following motor vehicle accident to be considered under statute as act disqualifying claimant from receipt of unemployment benefits. Bibolet v. Employment Dept., 288 Or App 489, 407 P3d 831 (2017)

Early separation

Although requested by her supervisor to leave her position early, claimant voluntarily left work without good cause when she voluntarily agreed to leave her position before her term of employment expired, despite having option of continuing to work until end of her original term. Burton v. Employment Div., 91 Or App 377, 755 P2d 723 (1988), Sup Ct review denied

Evidence

Where evidence showed that there was question of credibility relevant to determination whether claimant's conduct was misconduct or poor judgment, referee should not have made findings concerning disputed facts without resolving credibility issues. Precision Castparts Corp. v. Emp. Div., 88 Or App 562, 746 P2d 740 (1987)

Good cause

Good cause for leaving employment exists when external pressures are so compelling that a reasonably prudent person, exercising ordinary common sense and prudence, would be justified in quitting work under similar circumstances. Stevenson v. Morgan, 17 Or App 428, 522 P2d 1204 (1974)

"Good cause" refers only to cause which is objectively related to employment rather than arising solely from the employee's personal life. Arias v. Employment Div., 26 Or App 841, 554 P2d 538 (1976)

Whether "good cause" may include personal reasons is value judgment entrusted to division. Sothras v. Employment Div. 48 Or App 69, 616 P2d 524 (1980)

In determining whether petitioner had good cause to leave his employment, consideration must be given to suitable work factors of ORS 657.190. Ruiz v. Employment Division, 83 Or App 609, 733 P2d 51 (1987)

EAB could conclude that if employer lacks reasonable grounds for believing particular employee is impaired, that individual has good cause for quitting work rather than submit to drug test. Redman Homes, Inc. v. Employment Div., 97 Or App 653, 777 P2d 414 (1989)

Where Employment Appeals Board concluded that claimant had voluntarily left work with good cause and failed to explain why its findings did not lead to conclusion that claimant was able to perform her job when her employer was willing to accommodate her condition, EAB failed to state clearly and precisely what it finds to be facts and why those facts rationally lead to decision it makes. Douglas County v. Employment Div., 99 Or App 625, 783 P2d 1019 (1989)

Alternatives to leaving work are considered as part of determination of whether claimant left work without good cause under this section not suitability of work under ORS 657.190. Douglas County v. Employment Div., 99 Or App 625, 783 P2d 1019 (1989)

In deciding if claimant left work without good cause, division is not limited to considering separation from last employer but may review whether separation from prior employer is disqualifying act if claimant has not yet earned four times her weekly benefit amount. Employment Div. v. Sears, Roebuck & Co., 102 Or App 490, 794 P2d 828 (1990)

Where Employment Appeals Board failed to explain change in finding concerning credibility of claimant and failed to consider whether employer's offer violated minimum wage law, EAB erred in concluding that claimant had refused offer of suitable work without good cause. Newman v. Employment Div., 109 Or App 164, 818 P2d 960 (1991)

Before determining that employee failed to consider reasonable alternatives, Employment Appeals Board must make finding that reasonable alternatives existed. Fisher v. Employment Dept., 139 Or App 320, 911 P2d 975 (1996)

In determining whether claimant had "good cause" for voluntarily leaving work, circumstances existing from date of resignation to date of separation from employment are relevant. Ponder v. Employment Dept., 171 Or App 435, 15 P3d 602 (2000)

Where victim of domestic violence gave notice prior to leaving employment, whether victim believed reasonable alternatives to leaving employment existed was determined as of date employment ended, not date victim gave notice. Constantine v. Employment Department, 200 Or App 677, 117 P3d 279 (2005)

Hours of work

Evidence of continued tardiness by itself is sufficient to support a conclusion that a misconduct discharge was warranted. Balduyck v. Morgan, 9 Or App 363, 497 P2d 377 (1972); Steward v. Employment Div., 28 Or App 779, 562 P2d 648 (1977)

Benefits were properly denied since the claimant's actions of refusing to work overtime constituted "misconduct" connected with his work. Stromberg v. Employment Div., 25 Or App 455, 549 P2d 686 (1976)

Injury

Employee was not discharged for misconduct where failure to return to work after injury was based on physician's advice, even though films showed employee engaged in activity inconsistent with claimed disability. Pac. N.W. Bell v. Emp. Div., 37 Or App 843, 588 P2d 843 (1978)

Lack of employment

Where claimant waived seniority rights to benefit junior employees and was laid off for lack of work, because employees junior to claimant would have been laid off had claimant not waived seniority rights, claimant was not entitled to benefits. Leonard v. Employment Division, 90 Or App 81, 750 P2d 1186 (1988)

Where employer determined that 40 employees had to be terminated due to lack of work, claimant voluntarily accepted offered severance package and was terminated and, had claimant not made that choice, employee junior to claimant would have been terminated, claimant was not entitled to compensation. Crawford v. Employment Division, 90 Or App 191, 750 P2d 1217 (1988)

Misconduct

The phrase "misconduct connected with his work" is a sufficiently definite standard for discharge from employment, Weirich v. Employment Division, 19 Or App 479, 528 P2d 105 (1974)

The claimant's action in leaving work for a day did not constitute disqualifying misconduct. Geraths v. Employment Div., 24 Or App 201, 544 P2d 1066 (1976)

Evidence was sufficient to show that telephone installer engaged in misconduct by misrepresenting his physical ability to work for purpose of obtaining workers compensation benefits. Oullette v. Employment Division, 34 Or App 591, 579 P2d 301 (1978)

Ordinarily, single instance of misconduct is insufficient evidence to show that claimant's actions were wilful, conscious, and in derogation of interests of employer. Goodwin v. Employment Division, 35 Or App 299, 581 P2d 115 (1978)

EAB must address whether employee's behavior was isolated instance of poor judgment or good faith error when determining whether behavior was misconduct. Miranda v. Employment Division, 71 Or App 462, 692 P2d 697 (1984)

Employer could prove claimant was terminated for misconduct using almost exclusively documentary and hearsay evidence notwithstanding that claimant presented direct evidence; referee must assess all evidence, both hearsay and non-hearsay and then clearly state which evidence is found to be persuasive and credible. Tri-Met v. Employment Div., 88 Or App 122, 744 P2d 296 (1987)

Claimant discharged after single "loud and vulgar outburst" was not discharged for misconduct connected with work. Bunnell v. Employment Division, 304 Or 11, 741 P2d 887 (1987)

Determination of misconduct demands finding of willfulness or recurring negligence. Thomas v. Employment Division, 90 Or App 454, 752 P2d 1248 (1988)

Where employment benefits claimant believed that conviction had been expunged and accordingly, answered question on employment application concerning previous criminal conviction by stating he had none, such action, though intentional, was taken in good faith and did not constitute misconduct. Muldrew v. Employment Div., 92 Or App 60, 757 P2d 438 (1988)

Where applicable rule excludes isolated instances of poor judgment from definition of "misconduct," and where referee's order did not reflect consideration of whether claimant's conduct was an isolated instance of poor judgment, court remanded to Employment Appeals Board for reconsideration of that issue. Flaucher v. Employment Division, 92 Or App 396, 758 P2d 422 (1988)

Discharged nursing home laundry worker committed misconduct by withholding linen from employees not supportive of union at expense of patients cared for, shortly after receiving written warning about interfering with work of fellow employees. York v. Employment Division, 92 Or App 545, 759 P2d 310 (1988)

Evidence that claimant was intoxicated three hours into work shift and prior agreement with employer that positive result on random alcohol test could result in termination was sufficient to show that claimant was working impaired and that conduct was wilful and Employment Appeals Board decision to grant unemployment insurance benefits on ground that claimant had not been "discharged for misconduct connected with work" not rationally related to findings of fact. PGE v. Employment Division, 95 Or App 647, 770 P2d 940 (1989)

Where claimant refused to shave beard resulting in termination from employment and denial of unemployment benefits, findings indicate claimant was following advice of his psychologist and refusal does not necessarily constitute "wilful disregard of employer's interest" or "recurring negligence" demonstrating "wrongful intent." Whitacre v. Employment Div., 102 Or App 229, 793 P2d 1390 (1990)

Where substantial evidence in record supports Employment Appeals Board's finding that claimant took drink from employer's shelf intending to pay for it but subsequently forgot, board was correct in concluding that claimant was not subject to disqualification under this section for misconduct. Fred Meyer, Inc. v. Employment Div., 102 Or App 356, 794 P2d 1237 (1990)

Cancellation of benefits because discharge was for commission of felony or theft in connection with work does not require prior finding that discharge was for misconduct connected with work, and Employment Appeals Board should have considered conviction unless it had been reversed, vacated or set aside. Corvallis Tool Co. v. Employment Div., 102 Or App 463, 795 P2d 576 (1990)

Provision dealing with discharge for commission of felony or theft has its own definition of misconduct and administrative rule modifying definition to allow exception for isolated instance of poor judgment does not apply. Fred Meyer v. Employment Div., 103 Or App 404, 797 P2d 1066 (1990)

Employee's violation of last-chance agreement prohibiting employee's future drug use as condition of employment was itself insufficient for employee's off-duty drug use to constitute misconduct connected with work. Sun Veneer v. Employment Div., 105 Or App 198, 804 P2d 1174 (1991)

Where, because of claimant's erratic behavior and history of stress-related absences, employer ordered claimant to have psychological examination, claimant's refusal to participate in examination by psychologist selected by employer was misconduct connected with work. Langer v. Employment Div., 111 Or App 154, 826 P2d 6 (1992)

Finding by Employment Division referee that employee was fired for isolated instance of poor judgment was not finding that employee was not fired for misconduct. Nelson v. Emerald People's Utility District, 318 Or 99, 862 P2d 1293 (1993)

To be disqualifying, "misconduct connected with work" must be undertaken with at least some level of volition or some mental state that makes actor accountable for action or failure to act, so per se disqualification for alcohol-related action is improper. Steele v. Employment Dept., 143 Or App 105, 923 P2d 1252 (1996), aff'd 328 Or 292, 974 P2d 207 (1999)

Activity occurring during off-duty hours is "connected with work" where activity reflects on integral consideration for holding position and thereby causes breakdown in employment relationship. Levu v. Employment Dept., 149 Or App 29, 941 P2d 1056 (1997)

Multiple closely related acts of misconduct may be assessed as components of single occurrence of misconduct. Perez v. Employment Dept., 164 Or App 356, 992 P2d 460 (1999)

Claimant's loss of driver license after conviction for driving under influence of intoxicants constituted misconduct connected with work when driver license was requirement of job. Barnes v. Employment Dept., 171 Or App 342, 15 P3d 599 (2000)

Noncompetition agreements

Reasoning of Employment Appeals Board did not support conclusion that claimant left work without good cause where employer required claimant to sign contract containing noncompetition clause in order to continue employment and claimant refused to sign contract and, as a result, left work. Ryan v. Employment Div., 87 Or App 471, 742 P2d 707 (1987)

Off-duty conduct

The claimant's wrongful off-duty activities resulting in discharge were held not "misconduct connected with work" where the activity for which the claimant was discharged occurred off the working premises and outside the course and scope of employment and the employer failed to introduce evidence of a breach of an employer's rule. Giese v. Employment Div., 27 Or App 929, 557 P2d 1354 (1976), Sup Ct review denied

The phrase "connected with his work" was added to draw a distinction between misconduct while off-duty and misconduct in the course and scope of employment. Giese v. Employment Div., 27 Or App 929, 557 P2d 1354 (1976), Sup Ct review denied

Where claimant's assault of coworker had genesis in workplace and occurred adjacent to workplace premises immediately after both men left work and while both were still in postal service uniform, there was substantial evidence to support conclusion that altercation was connected with work. Flaucher v. Employment Division, 92 Or App 396, 758 P2d 422 (1988)

"Wilfulness" is question of fact, and EAB erred in understanding that all alcohol-related conduct by alcoholic person is necessarily product of person's alcoholism and cannot be volitional. James River Corp. v. Employment Division, 94 Or App 268, 765 P2d 217 (1988)

Board correctly found conduct occurring in restaurant after business hours was misconduct connected with work when job description required certain standard of conduct by employee while off-duty and employee's relationship with customers in towns where employer engaged in business was important to employer's business. Erne v. Employment Division, 109 Or App 629, 820 P2d 875 (1991)

Activity occurring during off-duty hours is "connected with work" where activity reflects on integral consideration for holding position and thereby causes breakdown in employment relationship. Levu v. Employment Dept., 149 Or App 29, 941 P2d 1056 (1997)

Reemployment and refusing employment

Claimant was not justified in refusing to accept reemployment because his wages were reduced to a lower rate, based upon his new permanent duties. Vargas v. Employment Div., 22 Or App 18, 537 P2d 569 (1975)

Evidence was sufficient to show that claimant had refused suitable employment, notwithstanding that claimant would have been required to hire babysitter to care for children had she accepted the position. Jones v. Employment Division, 30 Or App 103, 566 P2d 1202 (1977)

Claimant's refusal to accept employment as industrial first-aid nurse with cannery, on ground that 11 hour shift required by job was not normal in nursing profession, constituted failure to accept offer of suitable work. Gillette v. Employment Division, 34 Or App 53, 577 P2d 1357 (1978)

Where petitioner lost job when school district funds were cut, continued to seek work of same type, but declined to interview for employment with school located some distance from petitioner's house, there was not substantial evidence to support determination that school was within petitioner's labor market. McCann v. Emp. Div., 53 Or App 102, 630 P2d 1335 (1981)

Claimant should not be denied benefits under this section or ORS 657.325 unless referral is actually made by division, claimant understands referral is being made and referral is to suitable work for claimant. Frank v. Employment Div., 57 Or App 646, 646 P2d 70 (1982)

Striking worker is excused only from having to accept work from struck employer, not from seeking work from other employers. Cordova v. Employment Div., 108 Or App 223, 815 P2d 705 (1991)

Retirement

Employee retired at age of 65 under collective bargaining agreement did not leave work voluntarily without good cause and was entitled to unemployment benefits. Publishers Paper Co. v. Morgan, 10 Or App 94, 498 P2d 798 (1972), Sup Ct review denied

Strikes

Where collective bargaining agreement was breached by employer's unilateral reduction in wages, union members on strike in response to reduction were not disqualified from receiving unemployment benefits. Roseburg Forest Products Co. v. Employment Div., 313 Or 301, 835 P2d 889 (1992)

Suitable work

Claimant who leaves unsuitable work has not left without cause and, where claimant alleged she left work because it was unsuitable, referee was required to make finding on suitability. Dooley v. Employment Division, 88 Or App 609, 746 P2d 750 (1987)

Travel

Where travel was on-going requirement of job of sales representative, and employer's only request that sales representative make three-day sales trip was made eleven months after hiring, sales representative's absolute refusal to travel constituted "misconduct" within this section. Margolin v. Employment Division, 31 Or App 597, 571 P2d 162 (1977)

Voluntary separation

When a married couple is afforded the opportunity to decide which one of them will transfer to comply with a company policy prohibiting married couples from working in the same department, and the company has valid business reasons for the policy, that policy does not form the basis for leaving work with good cause. Hess v. Oregon Employment Div., 29 Or App 229, 562 P2d 1232 (1977)

Employee who voluntarily resigned because he believed that he would be discharged in the immediate future under circumstances which would not reflect well upon his performance as an employee did not "leave work with good cause." Beaverton School Dist. No. 48 v. Employment Div., 29 Or App 487, 564 P2d 717 (1977)

Part-time instructor at community college did not voluntarily leave work without good cause where her old contract expired, and she was never offered a new one. Kovach v. Employment Division, 35 Or App 609, 582 P2d 460 (1978)

Where claimant left employment by logging company under notice by foreman he would be laid off in near future and should seek other employment but had not been notified of exact date of layoff, and reason for leaving employment was to hold self available for work on other job he had arranged but for which he had not been called concerning specific time to report for work, claimant voluntarily left work without good cause under this section. Putnam v. Employment Div., 36 Or App 267, 584 P2d 348 (1978)

Where claimant left one job to return to school as well as take more attractive employment and nothing about first job would cause reasonably prudent person to quit, there was not good cause for termination, entitling claimant to receive compensation chargeable to first employer. Waide v. Employment Div., 38 Or App 121, 589 P2d 1138 (1979)

Where there was evidence parties had agreed claimant would leave work on certain date if she were covered by company insurance for dental appointment on subsequent date and claimant was later told she was in fact covered, Board properly concluded claimant voluntarily left work; denial of unemployment benefits affirmed. Schmelzer v. Employment Div., 57 Or App 759, 646 P2d 650 (1982), Sup Ct review denied

Claimant voluntarily left work without good cause where (1) upon receipt of job offer he gave employer two weeks notice but left before the end of notice period and (2) upon reporting for new job was informed that due to reduction in work orders no job was available. Green v. Employment Division, 59 Or App 367, 650 P2d 1077 (1982), Sup Ct review denied

Claimant who moved to North Dakota to accept job but maintained legal residence in Oregon, supported family and made payments on debts in Oregon and paid living and working expenses in North Dakota so that combined expenses exceeded wages by $550 a month, had good cause to quit job in North Dakota. Kuske v. Employment Div., 64 Or App 695, 669 P2d 817 (1983)

Although there was substantial evidence, at least in the abstract, to support finding that petitioner had reasonable alternatives to quitting, decision of Employment Appeals Board was reversed and remanded for determination of whether alternatives would have been "fruitless." Ferguson v. Employment Division, 68 Or App 849, 683 P2d 147 (1984)

Employment Appeals Board order disqualifying claimant from receiving unemployment compensation was reversed where board specifically found that claimant did not deliberately make errors and thus board's conclusion that claimant was guilty of misconduct did not follow from findings. Gething v. Employment Div., 68 Or App 900, 683 P2d 133 (1984)

Failure of petitioner to meet employer's performance standards did not constitute misconduct. Bowman v. Employment Division, 71 Or App 16, 691 P2d 148 (1984), Sup Ct review denied

Employment Appeals Board's failure to address, in its findings of fact, petitioner's contention that he left work because of wife's health problems rendered its order that petitioner "voluntarily left work without good cause" insufficient. Gutierrez v. Employment Division, 71 Or App 658, 693 P2d 1344 (1984)

There is no discharge if employer and claimant mutually agree on termination date or if claimant agrees to accelerate termination date. J.R. Simplot Co. v. Employment Div., 102 Or App 523, 795 P2d 579 (1990)

Suitability of work is not statutorily required consideration in determining whether claimant left work without good cause. Hunt v. Employment Dept., 139 Or App 440, 912 P2d 425 (1996)

Where claimant employee was sole stockholder in employer corporation, dissolution of corporation was agreement to mutually acceptable termination date and therefore voluntary leaving of work. Employment Dept. v. Shurin, 154 Or App 352, 959 P2d 637 (1998)

Where employee voluntarily submits then subsequently attempts to withdraw resignation, employer refusal to allow withdrawal does not change voluntary nature of resignation. Counts v. Employment Department, 159 Or App 22, 976 P2d 96 (1999)

Law Review Citations

27 WLR 182 (1991)

Chapter 657

Notes of Decisions

An individual who performs services for remuneration is an employee, and person or organization for whom services are performed is an employer under terms of Employment Division Law even if remuneration is paid indirectly rather than directly unless employer shows that some statutory exclusion applies. Lectro Lift, Inc. v. Morgan, 14 Or App 316, 513 P2d 526 (1973)

Mere act of incorporating as professional corporation does not, by itself, create employer-employee relationship for purposes of this chapter. Peterson v. Employment Division, 82 Or App 371, 728 P2d 95 (1986)

Determination of whether claimant is qualified for benefits is made by reference to ORS 657.150 and 657.155, which require determination of amount of work that claimant performed in "employment" as defined in ORS chapter 657, which, in turn means that exclusions from "employment" set out in ORS 657.040 through 657.094 must be considered. May Trucking Co. v. Employment Dept., 251 Or App 555, 284 P3d 553 (2012)

Atty. Gen. Opinions

Determining employer of musicians' group, (1972) Vol 35, p 1306


Source

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