Written by attorney Susan A. Wuchinich

Virginia Unemployment Compensation Claimants: Willful Misconduct

Virginia, unlike many other states, does not have gradations of misconduct such as “general misconduct" and “gross misconduct" where only the latter will totally disqualify the claimant from receiving benefits. Instead, Virginia has one standard: “Willful Misconduct". The burden of proving misconduct, however, is on the employer as it is in all states.

In Branch v. Virginia Employment Commission and Virginia Chemical Company, 219 Va. 609, 249 S.E.2d.180 (1978), the court determined that “an employee is guilty of "misconduct connected with his work" when he deliberately violates a company rule reasonably designed to protect the legitimate business interests of his employer, or when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer."

Based on this definition, there are basically two ways that you can be found to have committed willful misconduct. The first is by violating an employer’s known rule that is reasonably related to the employer’s legitimate business interests. Generally speaking, you must also know that if you violate the rule, it will lead to your termination. Thus, if the employer can show that you knew about the rule and violated it, he or she can successfully assert to the Virginia Employment Commission that you committed willful misconduct. Further, negligence, carelessness, bad judgment and incompetence will not excuse rule violations where you are capable of correcting those flaws, have been warned by the employer to do so and fail to remedy your conduct. That is because continued rule violations under such circumstances convert a once unintentional act into a willful one.

The second part of the court’s definition of misconduct acts as a flexible catch-all for behavior that technically does not involve a rule violation but is nevertheless considered contrary to the legitimate business interests of the employer and employee’s obligations to the employer. This standard can include employee insubordination, slack attendance, disloyalty, dishonesty, intoxication, uncooperativeness, more than one garnishment, breach of confidentiality and indifference.

Once the employer establishes such willful misconduct under either part of the definition, the employee has the burden of proving mitigating circumstances to excuse it. In Virginia Employment Commission v. Gantt, 7 Va. App. 631, 376 S.E.2d 808 (1989); _aff'd en banc 9 Va. App. 225, 383 S.E.2d 271 (1989)", the court stated that “[m]itigating circumstances are likely to be those considerations which establish that the employee's actions were not in disregard of those interests. Evidence of mitigation may appear in many forms which, singly or in combination, to some degree explain or justify the employee's conduct. Various factors to be considered may include: the importance of the business interest at risk; the nature and purpose of the rule; prior enforcement of the rule; good cause to justify the violation; and consistency with other rules. Therefore, in order to constitute misconduct, the total circumstances must be sufficient to find a deliberate act of the employee which disregards the employer's business interest." Mitigating circumstances can be shown in a variety of ways; for example (1) where the employee can show that the employer knew about the rule violation or employee conduct and through inaction, condoned it; (2) where a rule was not applied evenly to employees; (3) where an employee was provoked into engaging into unacceptable behavior; (4) where the employee was instructed by management to engage in misconduct; or (5) where management engages in the same alleged misconduct conduct as the employee.

CAUTION: Keep in mind that the purpose of this guide is for general information. Since each case stands on its own facts and because many of the legal standards above have various caveats in their application, it is best to have your particular situation evaluated by an attorney or representative who is very familiar with the Virginia Unemployment Compensation Statute and who can provide you with the best guidance.

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