The DLLR website will be unavailable from about 8:00 AM ET until about 12:00 PM ET on Saturday, October 4, 2014. We apologize for the inconvenience. Thank you for your patience.

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

 

IX. Attendance Problems
Persistent or chronic absenteeism, where the absences are without notice or excuse and continue in the face of warnings constitutes gross misconduct. Whether an employer may be able to have the absent employee's duties performed by others is not relevant to the misconduct determination. Watkins v. Employment Security Administration, 266 Md. 223, 292 A.2d 653 (1972).

However, an employee's violation of the employer's attendance policy does not automatically result in a finding of misconduct. If the employee is absent for a compelling reason, such as illness, the absence will be considered excused, even if it is counted as unexcused according to the employer's policy. Factors considered in determining whether or not there is misconduct include the number of absences or latenesses, the employer's policy, whether the claimant had a good reason for the absenteeism or lateness, whether the claimant properly notified the employer on each occasion and whether the claimant had been previously warned about this conduct.

Employees who miss a lot of time from work, even for excused reasons, have a "heightened duty" not to miss additional time for unexcused reasons and to conform to the employer's notice requirements.

The claimant was discharged by the employer for chronic poor attendance and lateness. The event which culminated in the claimant's discharge was a lateness attributed to his sister being in the hospital and his having to wait with his sister's children until a babysitter arrived. He was approximately 40 minutes late for work. The claimant had many prior incidents of lateness and absenteeism about which he had been warned. The Board found that, although the claimant's last lateness was for good reason, a finding of gross misconduct is supported where the claimant was discharged for a long record of absenteeism without excuse or notice which persisted after warnings. McNeill v. Nash Finch Company, 01616-BH-97 (1997).

Absenteeism due to incarceration is generally held to be gross misconduct. However, if the charges which brought about the incarceration were dropped or dismissed or the claimant was found to be not guilty, there may not be a penalty, provided the claimant gave the employer proper notice of the absence.

 

A. Absenteeism and Lateness

 

1. In General
A violation of an employer's attendance policy is not misconduct per se where that policy does not distinguish between absences which occurred because of legitimate medical reasons and absences for which there was no reasonable excuse. However, where an employee has been absent for a day of scheduled work, the burden of proof shifts to the employee to explain the reason for the absence. Leonard v. St. Agnes Hospital, 62-BR-86.

The claimant's discharge was for simple, but not gross, misconduct where the majority of his absences were excused by the employer. Francis v. Dover Poultry, Inc., 327-BR-86.

The claimant was deliberately five hours late for work because he needed rest. He also failed to notify the employer of his lateness. He had received previous warnings about attendance. This was gross misconduct. Thompson v. Chesapeake Paperboard Company, 445-BR-87.

The claimant failed to report to work or notify the employer of his absence for three consecutive scheduled work days. There was no indication that the claimant was so seriously ill that he could not call the employer during this time. This was gross misconduct. Rhodes v. Mullan Enterprises, Inc., 615-BR-89.

2. Chronic or Repeated
The claimant's lateness continued despite warnings and the claimant was absent twice without notice. A specific warning regarding termination is not required and a reasonable person should realize that such conduct leads to discharge. This was gross misconduct. Freyman v. Laurel Toyota, Inc., 608-BR-87.

Where the claimant was late only two times in one and one-half years and warned after the first time, forgiven and then discharged after the second time, there was no gross misconduct, but only simple misconduct. May v. Rudy's Patisserie, Inc., 639-BH-87.

Even though a claimant's last absence was with good reason, a finding of gross misconduct is supported where the claimant was discharged for a long record of absenteeism without valid excuse or notice, which persisted after warnings. Hamel v. Coldwater Seafood Corporation, 1227-BR-93.

The fact that an employer is a temporary employment agency and that the claimant's pattern of unexcused absences involved different placements, does not render the entire attendance record irrelevant. The claimant's record, taken as a whole, supports the conclusion that the claimant's discharge was for gross misconduct. Banks v. Staffmax Corporation, Inc., 966-BR-01 (2001).

3. Failure to Notify Employer
The claimant's absences and failure to notify the employer were due to the extreme trauma of the claimant's daughter's terminal illness. This was misconduct, but not gross misconduct. Gordon v. Liberty Medical Center, Inc., 800-BH-87.

The employer's policy, of which the claimant should have been aware, provided that an employee who neither reported to work nor called for three consecutive days would be terminated. The claimant failed to report to work or call in for four consecutive days. The record shows no excuse other than his written statement that he had a hangover. This was gross misconduct. Hardin v. Broadway Services, Inc., 146-BR-89.

The claimant, without authorization, did not report to work for four successive scheduled work days. The employer's policy states that three consecutive absences without notification constitutes job abandonment. The claimant's repeated absences without notification were a deliberate violation of the employer's attendance policy and rise to the level of gross misconduct. King v. Wicomico County, Maryland, 4027-BR-94.

On a Friday, the claimant left work early due to illness. She was scheduled to report to work the following Monday and Tuesday, but failed to report and failed to notify the employer of her absence. The claimant had received a previous warning about this and was specifically told to call if she was going to be absent. The claimant was discharged for gross misconduct. Bost v. Saturn Corporation, 643-BH-90.

The claimant was chronically late and absent and on numerous occasions failed to call in or had someone else call in for her. This violated the employer's rule that unless an employee could not call in, that employee must call in personally. Although the claimant may have had severe personal reasons for her continuing absence and lateness, she did not contact the employer in the appropriate manner or contact the employer at all to notify her supervisor of her absence or lateness. This continued after warnings. The claimant refused the employer's offer of a two-week leave of absence so that she could get her personal life in order. The discharge was for gross misconduct. Hall v. Johns Hopkins Hospital, 694-BH-91.

When a claimant, in the face of warning, did not properly justify his final absence with a required doctor's note, he was terminated for actions which evince a total disregard for the standard of behavior that the employer had a right to expect and, thus constitutes gross misconduct. In its decision, the Board stated "When an employee does not report or call into work, a single incident may only constitute simple misconduct. However, the Board views as a grave matter incidents where an employee violates the employer's attendance policies on more than one recent occasion by not calling or reporting into work." Beard v. C.T. Management, 02061-BR-97 (1997).

4. Effect of Warnings
The claimant missed an enormous amount of time from work due to his injury and illness. This was excused and is not misconduct. But the claimant also missed a large amount of additional time and for many of these absences, he failed to provide his employer medical documentation or call in according to company procedures. He was told several times to do this, but he ignored these warnings. This was gross misconduct. Saylor v. White Rose Paper Company, Inc., 620-BR-91.

Verbal "reminders" given on each occasion of lateness are the equivalent of warnings. Borbor v. L and B Corporation, 588-BR-92.

 

B. Excuses

 

1. In General
Where the student claimant was originally told that it was permissible to miss time from work in order to go on interviews for permanent work and then was fired for doing so, there was no misconduct. Joiner v. Santoni's Market, Inc., 466-BH-89.

The claimant had a compelling personal reason to be absent and also provided documentary evidence of the excuse. However, she was late four times without excuse after repeated counseling about lateness. The claimant's reason for lateness was not compelling. The claimant was discharged for misconduct. Martin v. Tabs Associates, Inc., 785-BR-91.

2. Illness and Disability
The claimant was absent from work on an authorized maternity leave. Due to unexpected medical complications, the claimant was not able to return to work as early as anticipated. The claimant kept her employer informed of her medical condition. The employer would not hold the claimant's job until she could return to work after her six-week checkup. Absenteeism due to illness is not misconduct. The claimant was discharged, but not for any misconduct. DuBois v. Redden and Rizk, P.A., 71-BH-90.

The claimant repeatedly failed to notify the employer of his absences and failed to attend scheduled appointments with the employees' assistance program. However, during this period, the claimant was suffering from schizophrenia, which caused him to act in an inappropriate manner. The claimant's psychiatric problems precluded his ability to act deliberately or willfully or to show a wanton disregard of his responsibilities. Since all of the claimant's work problems were caused by severe mental illness, his discharge was not due to misconduct. Fagbolagun v. Department of Planning, 730-BH-90.

The claimant had an excessive number of incidents of tardiness. However, during his last month of employment, his lateness was entirely due to his documented medical condition. The earlier incidents of tardiness were due to transportation problems. The claimant was discharged for misconduct. Schools v. AMI-Sub of Prince George's County, 932-BR-90.

The claimant missed 11 of the last 34 days of work. The claimant had been injured and her assignments were adjusted to be within her capabilities. The amount of absenteeism was not justified by her injury. She had been counseled about the importance of avoiding absenteeism. The claimant was discharged for gross misconduct. Johnson v. United States Postal Service, 66-BR-91.

The claimant notified the employer that he was ill and would be unable to report to work. The employer advised the claimant to return to the job site as soon as he was physically able to do so. The claimant was unable to work for 13 days. Upon recuperating, he returned to the job site ready to resume his job, however, the claimant learned he had been discharged while he was absent due to illness. The claimant's discharge for failing to report to work while he was ill was not for misconduct. Rivas v. Miller and Long Company, Inc., 431-SE-91.

The claimant was only able to work three hours per day, four days per week, due to a documented medical condition over which she had no control. Her inability to work 40 hours per week does not rise to the level of misconduct. Dugan v. Store, Ltd., 2056-BR-92.

The claimant was repeatedly absent from work due to a medical condition which she previously controlled by prescription medicine through medical insurance offered by her employer and which she recently refused to purchase and take. After repeated warnings, the claimant was terminated. Her refusal to purchase and take her medication, causing her to be repeatedly absent from work rises to the level of gross misconduct. Bryant v. Johns Hopkins Bayview Medical Center, 967-BH-95.

3. Heightened Duty to Report to Work
Employees who miss a lot of time, even for excused reasons, have a heightened duty not to miss additional time for unexcused reasons and to conform to the employer's notice requirements. Daley v. Vaccaro's, Inc., 1432-BR-93.

The claimant's absences all appeared to be due to illness. However, at least some of her occurrences of lateness were not due to legitimate medical reasons or other unavoidable reasons. An employee who misses a large number of work days, even if excused, has a heightened duty not to miss any work for unexcused reasons. The claimant was discharged for misconduct. Kinsey v. Nordstrom, Inc., 1103-BR-90.

4. Incarceration
The claimant was incarcerated for nine weeks during which time his job ended for lack of funding. The claimant provided notice of the incarceration to the employer, and was eventually released when the charges were dropped. The claimant's incarceration, of which the employer was given notice, for a crime of which the claimant was not guilty, constitutes a good excuse for the absences which were totally beyond his control, and a finding of misconduct is not supported. Lansinger v. Baltimore County Fire Department, 1305-BR-82.

The claimant was discharged for absenteeism while incarcerated for violation of probation. The claimant failed to take any reasonable steps to notify the employer of the absence before or after incarceration. The claimant merely called in sick on his court date. The claimant's actions violated a standard of behavior the employer had a right to expect, showing a gross indifference to the employer's interest, thus constituting gross misconduct. Roach v. Montgomery County Government, 710-BR-85.

An incarcerated claimant was allowed to continue working under a work release program, but failed to adhere to the rules and be present at the work site when required. As a result, he was taken off work release and had to serve the balance of his sentence, causing him to be absent without excuse. The claimant was discharged for gross misconduct. Kennedy v. Baltimore City Wastewater Treatment Plant, 990-BR-85.

The claimant failed to report to work due to his incarceration for a handgun violation. The claimant was discharged for gross misconduct. Farmer v. Perdue Farms, Inc., 1563-BR-91.

5. Transportation Problems
The claimant was late one time due to a car problem and notified the employer. However, the claimant was fired after this. The claimant was otherwise a good employee and had worked for the employer for seven years. There was no misconduct. Seledee v. Thomas H. McCarty, et al., 547-BH-88.

The claimant was absent nine times and late 17 times within a year. She received three written warnings and a suspension. The claimant had problems with transportation which led to her absences and latenesses. Transportation problems do not excuse numerous incidents of absenteeism and lateness. The claimant was discharged for gross misconduct. Williams v. Francis Scott Key Medical Center, 942-BR-91.

6. Personal or Family Problems
Where the claimant was called away from work due to the emergency hospitalization of her child, her discharge for the absence was not for misconduct. Tawney v. Continental Plastics, 785-BH-84.

 

C. Leaving Work Early or Walking Off Job
The claimant, who was an essential employee, left work without notice during an emergency overtime shift. The burden is clearly on the claimant to show good reason for leaving. Absent that showing here, the claimant's leaving under the circumstances constitutes gross misconduct. Townsend v. Baltimore Department of Public Works, 758-BH-83.

There was no misconduct or gross misconduct where the claimant left work early because a job-related medical problem with his hands rendered him unable to continue working that day. Drayton v. Perdue, Inc., 104-BR-84.

The claimant had a heated argument with his supervisor, left the site of the argument and visited the president of the company. The claimant told the president that he had problems and was leaving. He left the premises and did not show up again until the next day. When he reported to work, he was advised that he no longer had a job there. The claimant had no right to walk off the job the day before. The claimant's action constitutes misconduct. Tate v. Armscorp of America, Inc., 256-BR-90.

The claimant had his supervisor's permission to take some time off during the day to attend to personal business. When he called his supervisor to let him know that he would be delayed in getting back to work, he was told he was discharged. No reason was given. The claimant was an excellent worker and did not have any serious problems at work. The claimant was discharged, but there was no misconduct. Carter v. Erdman Lumber Company, Inc., 573-BH-90.

The claimant left work early without permission. He was riding to and from work with a coworker who had been given permission to leave early. However, upon learning that his coworker was leaving early, the claimant did not attempt to obtain permission to leave early also. There was no evidence that the claimant falsified his time records. The claimant was discharged for misconduct. Myrick v. Toepfer Construction Company, Inc., 651-BR-91.

Where a claimant has a position where he is responsible for the security and safety of others and their property, a heightened expectation that the claimant will fulfill his duties properly can and should be expected by employers. When the claimant, a trained guard who was responsible for the security of the motel, left his post without authorization, well before the end of his shift and in violation of company rules, he was grossly negligent in his duties and this constitutes gross misconduct. Puth v. Montgomery Investigative, 2625-BR-94.

 

X. Alcohol and Drug Use
Drug abuse and alcoholism are considered diseases under Section 8-101 of the Health-General Article of the Annotated Code of Maryland. Where alcoholism results in "an irresistible compulsion to drink," the resulting absenteeism and performance problems have been held not to be misconduct. Jacobs v. California Unemployment Insurance Appeals Board, 25 Cal. App. 3d 1035, 102 Cal. Rptr. 364 (1972). This doctrine does not excuse an employee's conduct where he has refused the chance to get treatment, has deliberately failed to complete treatment, or has not shown that his urge to drink is an irresistible compulsion.

An employee's refusal to submit to a drug screening test may be grounds for a finding of gross misconduct. However, when requiring drug or alcohol testing, the employer must adhere to the provisions of Section 17-214.1 of the Health-General Article of the Annotated Code of Maryland in order to have the test results be considered as evidence of misconduct. This section requires, among other things, that the employer give the employee written notice of his right to resubmit the same test sample to a laboratory of the employee's choosing. If the employer fails to offer this option to the employee, the test results may not be able to be used as a basis for a finding of misconduct.

 

A. On Work Premises
The claimant was discharged for gross misconduct because he reported to work in an intoxicated condition after the employer had given him a second chance to rehabilitate himself. The claimant showed some ability to remain sober and the employer made a sincere effort to give the claimant an opportunity to rehabilitate himself. Chinn v. Cook's Supermarket, 1168-BH-81.
The claimant drove the employer's truck while under the influence of alcohol. This was gross misconduct. Howard v. Ray Sears and Son, 517-SE-87.

The employer hired a private investigator to investigate the use and sale of illegal drugs on its property. In the presence of the private investigator, and on company property, the claimant purchased a $10.00 bag of marijuana. This was a violation of the employer's standards of ethics and conduct and was gross misconduct. Patterson v. Applied Physics Laboratory, 864-BR-89.
The claimant was discharged for drinking alcoholic beverages while on the job, in violation of the employer's policy. This was gross misconduct. Vernon v. Slapstix Comedy Club, 356-BR-90.

B. Off Work Premises

The claimant reported to work with a .17 blood alcohol level after consuming beer a few hours before work. The claimant's job was to drive a crane. The claimant was discharged for gross misconduct. Prestileo v. Durrett-Sheppard Steel, 14-BR-87.

The claimant took and also gave to another employee, controlled dangerous substances while on a dinner break at home. Both went back to work, and the other employee behaved in a crazed manner. The claimant was discharged for gross misconduct. Hadaway v. Convention Complex, 98-BR-88.

The claimant correctional officer was convicted of driving while intoxicated during his off duty hours. Criminal charges of drug possession were placed on the stet docket and not prosecuted at that time. As a result of this, the claimant, whose duties included searching inmates for drugs, was suspended pending discharge. A correctional officer is in a position of trust in which his own integrity and avoidance of criminal action is relevant to his daily work. Therefore, a breach of the employment rule prohibiting the use of drugs, even while off duty, constitutes gross misconduct. Queen v. State of Md./MCIJ, 219-BH-89.

C. Alcoholism As a Disease
The claimant, who was an alcoholic, was absent on several occasions, some due to alcohol treatment and one occasion due to an on-the-job injury. After a long period of abstinence, the claimant again began drinking, entered a treatment program, and was discharged upon his return to work. Based upon evidence adduced at the hearing, it was concluded that the claimant was a "chronic alcoholic" as that term is defined in Section 8-101 of the Health-General Article of the Annotated Code of Maryland. Whether his chronic absenteeism, caused by chronic intoxication, constitutes misconduct depends on whether his intoxication-induced behavior was the product of an irresistible compulsion to drink; if so found, the claimant's behavior would not be disqualifying. See, Jacobs v. California Unemployment Insurance Appeals Board, 25 Cal. App. 3d. 1035, 102 Cal. Rptr. 364 (1972). In this case, the claimant was unable to control his drinking, and much of his absenteeism, particularly the last incident that led to his discharge, was due to an irresistible compulsion to drink, and was therefore not misconduct. Johnson v. Union Trust Company of Maryland, 204-BH-85.

The claimant had a large number of latenesses which were due to alcoholism. However, the claimant failed to show a good faith effort to correct the problem or that he suffered from an irresistible compulsion to drink. The claimant was discharged for gross misconduct. Lane v. City of Baltimore, 678-BR-89.

The claimant failed to report to work for three days without notifying the employer of his absence. There was insufficient evidence that an irresistible compulsion to drink alcohol led to the claimant's absenteeism. The claimant was discharged for gross misconduct. Reardon v. Housing Authority of Baltimore City, 708-BR-90.

D. Effect of Treatment

 

1. Duty to Seek Treatment
An employer's failure to discover a claimant's alcoholism and then treat it under its employee assistance program does not excuse the claimant's ten-year history of performance problems. An employer is not the legal guardian of its employees, nor does the existence of an employee assistance program make the employer the insurer against any of the diseases or maladies which the program is designed to treat. Thornton v. UMAB, 701-BH-85.

The claimant suffered from the illness of alcoholism, but failed to take advantage of available treatment, after being specifically granted a leave of absence to attend treatment, and then failed to return to work for two weeks thereafter. The claimant's conduct constitutes gross misconduct. Williams v. Baltimore City Schools, 469-BR-88.

The claimant's job consisted of applying a hazardous chemical to underground storage tanks. As part of a required physical, the claimant was tested for drugs and tested positive for cocaine. The employer demanded that the claimant enroll in a drug treatment program but the claimant refused and was discharged. The employer was entitled to require the claimant to make all necessary efforts to stop ingesting this drug. The claimant was discharged for gross misconduct. Insley v. Buffcoat, Inc., 432-BR-91.

2. Cooperation with Treatment Program
The claimant was a drug user who attended a drug treatment program and returned to work on the condition that he would remain drug free. The claimant violated this condition. This is gross misconduct. Sommerfield v. National Gypsum, 337-BH-87.

The claimant failed to abide by treatment for alcoholism, even with the employer's assistance. This was held to be gross misconduct. Gunther v. City of Baltimore, 633-BH-87.

 

E. Effect on Job Performance

 

1. Alcohol
The claimant, who reported to work under the influence of alcohol while learning how to operate a fork lift truck, was discharged for gross misconduct. Young v. Fort Howard Cup Corporation, 933-BR-89.

The claimant was employed as a maintenance man in a dairy plant. The claimant technically violated the employer's policy by having a .037 level of alcohol in his blood at work. Under Maryland law, this blood level does not raise a presumption that the claimant was either intoxicated or under the influence of alcohol. Without any proof that the claimant was unfit, the claimant committed no misconduct since having this small concentration of alcohol in one's system is neither illegal nor detrimental to the employer's interest. Poe v. High's Dairies, Inc., 224-BH-93.

2. Drugs
The claimant was discharged for bizarre, loud and aggressive behavior which resulted from the side effects of legally prescribed drugs. The claimant provided medical documentation that the drugs could have been primarily responsible for the behavior leading directly to the discharge. There was no misconduct. Day v. Sinai Hospital of Baltimore, 540-BH-85.

It is not the claimant's addiction to drugs that constitutes misconduct, but his violation of the employer's rules by reporting to work and operating dangerous equipment while having drugs in his system. Reaves v. ISPA Company, 126-BR-93.

The employer's rule forbidding employees to report to work with a detectable residue of illegal drugs in their systems was reasonable. Gordon v. Baines Management Company, 487-BR-93. NOTE: This decision was affirmed by the Circuit Court and by the Court of Special Appeals.

The claimant was discharged as a result of a positive drug test administered pursuant to the employer's zero-tolerance drug policy. The claimant's unrebutted testimony was that he had only ingested cough medication that he was given by a co-worker, the contents of which he was unaware at the time of ingestion. The Board found that the employer had not met its evidentiary burden of proof. Further, the Board concluded that one isolated incident, due to an unintentional mistake by the claimant, does not rise to the level of misconduct, let alone gross misconduct. Lyston v. PreMix Industries, Inc., 01379-BH-99 (1999).

 

F. Alcohol and Drug Screenings

 

1. Mandatory, Random Testing
The claimant drove a bus for the employer. Two days after he was hired, he took a physical which revealed chemical evidence of the use of cocaine. When the employer learned the results of the claimant's physical, the claimant was discharged. This was held to be gross misconduct. Lucas v. Gladney Transportation, 577-BH-90.

The employer was subject to the requirements of the United States Department of Transportation, which required random drug testing. The claimant was familiar with the procedures, having been tested before. After receiving notice to present himself within the hour for testing, the claimant failed to appear or to contact his employer. A finding of gross misconduct is warranted. Gintling v. Baltimore Gas and Electric Company, 913-BH-92. NOTE: This decision was reversed by the Circuit Court. The Court of Special Appeals then reversed the Circuit Court, affirming the Board's original decision.

A school bus driver's failure to submit to a required drug test amounts to gross misconduct. Deluca v. Montgomery County Public Schools, 1632-BR-93.

2. Required Due to Employee's Conduct
The claimant showed impairment, had the odor of marijuana, and refused a drug test against the employer's policy, direct order and warnings. The claimant could have taken the test in private. The claimant's actions constitute gross misconduct. Conney v. Fort Howard Cup Corporation, 552-BH-88.

The claimant had an attendance problem and the employer required urine and blood testing. The claimant refused. This was held to be gross misconduct. Stauffer v. Noxell Corporation, 1111-BH-88.

On the claimant's last day of work, he was taking an excessive amount of time to do his work, was late for work and arrived sweating, nervous and with dilated pupils. He avoided eye contact with other employees. The employer sent the claimant for a drug/alcohol screening test which, after being redone, came back positive for marijuana and cocaine. The claimant was discharged for gross misconduct. Savage v. The Johns Hopkins Health System Corporation, 223-BH-89.

The claimant truck driver had undergone rehabilitation for cocaine addiction at the employer's expense. He successfully completed the program and knew that one of the conditions of his return to work would be to remain drug free, which would be confirmed by random screening by the employer. The claimant was given a drug screening test and failed it. This was gross misconduct. Bydume v. Baltimore Gas and Electric Company, 950-BR-90.

3. Employer's Obligation Under Health-General Article
The employer failed to meet the requirements of Section 17-214.1(c)(1)(iv) of the Health-General Article of the Annotated Code of Maryland. This section provides that an employer, after having required an employee to be tested for the use or abuse of any controlled dangerous substance, and who receives notice that the employee has tested positive, after confirmation of that test result, shall provide the employee with a statement or copy of subsection (d) of this section permitting an employee to request independent testing of the same sample for verification of the test result. Therefore, based on the employer's failure to meet this requirement, thereby denying the claimant an opportunity to be retested, the Board concluded that the claimant was discharged for no misconduct. The Board cannot consider as evidence test results which were not acquired in conformity with the law. Webe v. Anderson Oldsmobile Company, 88-BR-91.

A claimant was given a chance to go into an addiction treatment program in lieu of termination. Part of the agreement between the claimant and the employer was that if the claimant did not abide by the rules of the treatment program, he would be fired. Subsequently, the claimant tested positive for alcohol. This proved that he violated the rules of the program. Section 17-214.1(c)(1)(iv) of the Health-General Article does not apply, because the employer did not administer the test nor require the claimant to be tested. The employer only required that the claimant abide by the rules of the treatment program. The claimant violated a rule of the treatment program, which resulted in a finding of gross misconduct. Parker v. Greater Baltimore Medical Center, 885-BH-91.

The claimant was randomly tested for drugs in accord with the union agreement, and was found to be positive for cocaine. He was then required to enroll in an employee assistance program since it was his first offense. One of the conditions for his remaining employed was that he not test positive for any drugs. Subsequently, the claimant was tested and found positive for opiates and cocaine metabolites. As a result, he was discharged. The employer in this case is not required to follow the drug testing requirements in Section 17-214.1 of the Health-General Article because it had entered into a compact with Maryland, Virginia and the District of Columbia allowing it to provide for the removal of employees without regard to the laws of the signatories. The claimant was discharged for gross misconduct. Thompson v. Washington Metro Area Transit Authority, 1461-BH-91.

Whether the claimant is informed of, or given the opportunity to have a second testing of the same sample is irrelevant when the claimant does not deny that the results of the drug test are accurate. Boyd v. Cantwell Cleary Company, Inc., 1845-BH-92.

The claimant was not given an opportunity to refute the results of his drug test, however he does not dispute the drug test results. Furthermore, he admits to a relapse of his drug addiction. The fact that he did not see an actual copy of the lab report and was not informed of his right to retest the sample is not relevant when the claimant does not dispute any of the results or allegations and admits to a continuation of drug abuse. Nolan v. Lyon, Conklin and Company, Inc., 115-BR-95.

The claimant does not dispute the fact that he failed a random drug test by testing positive for cocaine. The undisputed drug test result is itself enough to support a finding of gross misconduct even without testimony from the employer at the hearing. The test result speaks for itself. Jones v. Race Track Payroll Account, Inc., 2204-BR-95.

The employer is not obligated to arrange for or provide a retest of the employee's specimen, but is required to provide a copy of the employee's retesting rights. The employee is to designate the laboratory that is to do the retesting. The employer has the duty to cooperate with the employee, i.e. have the sample sent to the employee-designated certified laboratory, but is not required to provide a list of approved laboratories. Burton v. Thorn EMI Malco, Inc., 1852-BR-92.

The claimant truck driver tested positive for the use of cocaine on a recognized test conducted by an established laboratory. The procedures used by the employer comply with the regulations issued under the Federal Motor Carriers Safety Act, 49 C.F.R. Section 391 et. seq., but these procedures do not comply with the Maryland law regulating drug testing by all employers. (See, Section 17-214.1 of the Health-General Article.) The Maryland law is not preempted by the federal Motor Carriers Safety Act. Absent a showing that the employer has complied with the Health-General section cited above, the Board will not consider drug test results as probative evidence in a discharge case. But, in this case, the claimant actually knew of his rights under the Maryland statute from his experience at a previous employer. He made no substantial effort to obtain a retest. The purpose of the Health-General section is met by the claimant's actual knowledge of his right to have a retest. Requiring written notification is simply an added formality in this case. Scott v. Old Dominion Freight Line, 28-BH-93.

Section 17-214.1(d) affords employees the right to have their urine or blood samples retested at their expense. The law sets no limitation on this expense and does not require the employer to use any particular laboratory in order to minimize cost to employees who desire a retest on their samples. Use of an out-of-state laboratory does not impose an unreasonable cost on employees. Toles v. Caterair International Corporation, 1329-BR-93.

4. Validity of Test
The repackaging of a urine sample which had sat sealed in a refrigerator for five days compromised the validity of the drug test, even where the claimant observed the repackaging and initialed the first, then the second container, to indicate that it was his sample. Nunnally v. Ace Hardware Corporation, 205-BH-93.

 
XI. Exercise of Employee's Rights
When an employee is discharged solely because the employee exercised a statutory or constitutional right, no misconduct will be found. For example, where an employee was discharged after she informed her employer that she planned to file a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discrimination, there was no misconduct. Also, if an employee is discharged because he is unable to work certain hours due to religious beliefs, the imposition of a disqualification from receiving unemployment benefits would be a violation of the employee's First Amendment rights. Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 107 S.Ct. 1046 (1987).
 

A. Right to Respond to Job Conditions

 

1. Responding to Evaluations
The claimant was discharged as insubordinate for responding to an evaluation by submitting a written memorandum to her supervisor and the company president which included complaints about her supervisor. There was no misconduct. Morris v. Automated Health Systems, 817-BR-83.

2. Requesting Change in Work Status
The claimant asked for a raise and a change in hours. As a result, the claimant was discharged, but there was no misconduct. West v. Ronald Jones, et al., 583-SE-88.

The claimant worked for almost two years on the 4:00 p.m. to 11:00 p.m. shift. He began taking a course which made it very difficult for him to report to work by 4:00 p.m. The claimant asked the employer if his hours could be cut and his starting time be set at 5:00 p.m or 5:30 p.m., but the employer failed to respond. When the claimant subsequently reported to work on time, he was told that he had been laid off. A suggestion that one's hours be changed is not misconduct. Therefore, the claimant was discharged, but not for any misconduct. Hill v. BPS Guard Service, Inc., 1031-BR-91.

3. Refusing to Reimburse for Cash Shortages
The claimant gas station attendant was discharged for her refusal to reimburse the employer for shortages incurred on the job, since such payment would reduce her pay to below the minimum wage. The employer's requirement of reimbursement was illegal under the Fair Labor Standards Act and its regulations, which provide that deductions for shortages cannot be made from wages if such deductions bring the employee's remuneration below the minimum wage. Therefore, the claimant's refusal to reimburse the employer does not constitute misconduct. Hatfield v. Tri-State Oil, 390-BR-82.

4. Filing Charges Against Employer

 

a. Discrimination
The claimant was discharged upon informing her employer that she was going to file a complaint with the Equal Employment Opportunity Commission (EEOC). The claimant had a right to complain if she felt aggrieved, and alerting the employer that she intended to file a complaint is not misconduct. Cummings v. Rod n' Reel Restaurant, 725-SE-83.

b. Other
The claimant was discharged for filing a request for arbitration. This was not misconduct. Weambe v. Housing Authority of Baltimore, 126-BR-88.

 
5. Questioning Employer's Action or Inaction
The claimant was discharged after he questioned the employer about whether the employer was making timely payments to the court of the child support payments he was withholding. The employer in fact was not making timely payments. The claimant had every right to question the employer about this. His questioning of the employer did not amount to misconduct or gross misconduct. Barnes v. Empire Glass and Mirror, Inc., 1171-BR-91.
 

B. Religious Beliefs
The claimant was discharged because he could not work on Sunday, as required by the employer, because of religious reasons. A state cannot constitutionally apply the eligibility provisions of the unemployment compensation statute so as to deny benefits to a claimant who refuses employment because the employment violates that claimant's religious beliefs prohibiting work on certain days. To do otherwise would be in violation of the guarantee of free exercise of religion under the First Amendment to the United States Constitution made applicable to the states by the Fourteenth Amendment. Sherbert v. Verner, 374 U.S 398, 83 S.Ct. 1790 (1963). Therefore, benefits were allowed the claimant under the Maryland Constitution and the First and Fourteenth Amendments to the United States Constitution. Estes v. Fred and Harry's Restaurant, 789-BH-84.
The claimant missed work for sincere religious reasons and was discharged. There was no misconduct. Robinson v. United States Fidelity and Guaranty Company, 975-BH-89.

C. Right to Seek Other Employment

 

1. For Oneself
The claimant became unhappy with her supervisor's methods of supervision. In December, 1989, the claimant met with her supervisor and another employee and announced that she was looking for other employment. The claimant did not intend to quit unless she found better employment. The employer, however, began searching for a replacement for the claimant and in early January, 1990, informed the claimant that her last day of work would be January 19, 1990. A statement by an employee that the employee is seeking, or is going to seek other work, simply is not the same as resigning. The claimant was discharged, but not for any misconduct. Levitt-O'Malley v. It's Polite to Point, 515-BR-90.

The claimant informed the employer that he had accepted another job which was to begin at some indefinite time in the future. The claimant did not intend to resign and specifically informed the employer that there was no definite date set for his job change. The employer required the claimant to come up with a date for his resignation within 24 hours. This amounts to a discharge. Announcing an intention to leave work at some time in the future is not misconduct. Kroski v. Social and Scientific Systems, 1072-BR-90.

2. For Others
The claimant was discharged for mentioning a job opening to a coworker who was later hired for the position. The claimant had a right to pass along publicly available information to a friend, and her actions do not constitute misconduct. Benvenga v. Sapero and Sapero, 720-BH-84.

 

D. Strikes
The claimants, who were all air traffic controllers and members of PATCO, the air traffic controllers union, participated in a strike, which resulted in substantial work stoppages at subject air fields. The claimants knew that federal law prohibits such strikes and that doing same constitutes a felony. Knowingly engaging in a patently illegal strike satisfies the definition of gross misconduct. Hudgins, et al. v. Federal Aviation Administration, 162-BH-82.

When a wildcat strike in violation of the terms of the employment contract occurred, the claimant, a union steward, requested that another union begin a secondary boycott in order to shut down the employer's operations. The claimant also refused to ask his own men to return to work when so requested by the employer. The attempt to shut down the employer's operations was gross misconduct. Since the employer's request that the claimant, a union official, at least instruct his men to honor the contract was reasonable, the refusal do this was also gross misconduct. Wilson v. CSY Finance, Inc., 580-BH-86.

E. Other
Making public statements about one's employer could constitute misconduct if the statements were untrue or possibly if the statements were even technically accurate but taken so much out of context that the net effect would be unfair harm to the employer. In this case, the employer failed to meet its burden of showing that statements in a television interview were untrue, or unfairly taken out of context. With regard to the newspaper article, the employer has not shown that the claimant made any of the derogatory remarks. The claimant was discharged, but not for misconduct or gross misconduct. Bailey v. Diesel Institute of America, 752-BR-89.

After the claimant refused to sign a driver's liability statement, the employer told him to turn in his keys and leave. The statement that the claimant was asked to sign was almost identical to an earlier statement that he had signed when he was first hired and which was technically still in effect. The claimant adamantly refused to sign it without stating his objections or offering to negotiate. The claimant was discharged for misconduct. Fitch v. Eastend Hotel, Inc., 1037-BR-89.

After the claimant was involved in an accident while driving the employer's vehicle, the employer sought to collect the $250 insurance deductible amount from the claimant's wages pursuant to a prior agreement by the claimant to indemnify the employer. The claimant was discharged when he refused to do so primarily because he denied any negligence on his part. Courts have generally been reluctant to enforce contracts which purport to allow a party to make unilateral determinations of negligence and damages, thereby circumventing the judicial process. The claimant's refusal to allow a deduction for damages, where he disputed negligence and indebtedness, is not misconduct. Bayne v. G and M Performance Parts, Inc., 694-BR-83.

 

XII. Application of Penalty

 

A. Discharge from Noncovered Employment
The disqualifications under Sections 8-1001 through 8-1003 are based on the reason for the claimant's present state of unemployment. In every case, the reason why the claimant left his or her last employment, covered or noncovered, is certainly relevant to the reason the claimant is unemployed. Yasin v. Grempler Realty, Inc., 273-BR-82.

B. Extent of Penalty
The claimant was found to have been discharged for gross misconduct under Section 8-1002. The claimant was later reinstated with back pay and argued that the Section 8-1002 penalty should be ignored because the discharge was nullified by the reinstatement. The Section 8-1002 penalty is final and is not affected by any subsequent reinstatement. Tracey v. SCM Chemicals, 166-BH-84.