Sec.31-236-26b. Knowing violation

In order to establish that an individual was discharged or suspended for a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, the Administrator must find all of the following:

(a) Knowing Violation. To find that an individual engaged in a single knowing violation of a rule or policy of the employer, the Administrator must find that:

(1) the individual knew of such rule or policy, or should have known of the rule or policy because it was effectively communicated to the individual. In determining whether the rule or policy was effectively communicated to the individual, the Administrator may consider the manner in which the rule or policy was communicated. Evidence of the employer's actions, including but not limited to, posting of the rule or policy within the company at a place likely to be observed by the employees; explanation of the rule at a training or orientation session; verbal explanation of the rule to the individual; distribution of a document to the individual which contained the rule or policy; warnings or other disciplinary action; and evidence of the individual's receipt of any document containing the rule or policy should be considered in determining whether the rule or policy was effectively communicated by the employer to the individual;

(2) the individual's conduct violated the particular rule or policy; and

(3) the individual was aware he was engaged in such conduct.

(A) If the rule or policy requires an intentional act, the Administrator must inquire into the individual's intent to violate such rule or policy.

(i) An example of a rule or policy that requires an intentional act is a rule prohibiting falsification or deliberate misrepresentation of an employer's business records.

(b) Reasonable Rule or Policy. To find that a rule or policy instituted by an employer is reasonable, the Administrator must find that the rule or policy furthers the employer's lawful business interest. The administrator may find an employer rule or policy to be reasonable on its face. For example, a rule prohibiting fighting in the workplace is reasonable on its face. When evidence is offered to demonstrate that the rule or policy is unreasonable, the Administrator may consider whether:

(1) the rule or policy was reasonable in light of the employer's lawful business interest. Examples of reasonable rules or policies that further the employer's lawful business interest may include, but are not limited to, a rule or policy prohibiting eating at the employee's work station to ensure office cleanliness; and a rule or policy requiring employees to wear a hair net or hat while preparing food for customers for health reasons; and

(2) there is a clear relationship between the rule or policy, the conduct regulated and the employer's lawful business interest.

(c) Uniformly Enforced. To find that a rule or policy of the employer was uniformly enforced, the Administrator must find that similarly situated employees subject to the workplace rule or policy are treated in a similar manner when a rule or policy is violated.

(d) Reasonable Application. To find that a rule or policy of an employer was reasonably applied, the Administrator must find:

(1) that the adverse personnel action taken by the employer is appropriate in light of the violation of the rule or policy and the employer's lawful business interest;

(A) An example of an adverse personnel action that is appropriate in light of the violation of a rule or policy prohibiting tardiness is an individual's discharge or suspension for habitual tardiness without reasonable excuse after warnings.

(B) An example of an adverse personnel action that is not appropriate in light of the violation of the rule or policy is an individual's discharge for violating a dress code policy, one time, by wearing a skirt that is one inch shorter than that allowable by the policy; and

(2) that there were no compelling circumstances which would have prevented the individual from adhering to the rule or policy. Examples of circumstances which are of a compelling nature include, but are not limited to, serious weather-related problems, rules which are contradictory or require actions that are illegal or improper, rules the adherence to which could result in injury to the health or safety of an individual or other objectively verifiable circumstances which are of a compelling nature.

(e) Incompetence. To find that the violation of a rule or policy of the employer is a result of the individual's incompetence and therefore is not wilful misconduct, the Administrator must find that the individual was incapable of adhering to the requirements of the rule or policy due to a lack of ability, skills or training, unless it is established that the individual wilfully performed below his employer's standard and that the standard was reasonable.

(1) Examples of a violation of a rule or policy due to incompetence include, but are not limited to, an employee who is required to perform at a certain level of word processing proficiency, but who fails to perform at such level because he does not have the requisite skills, training or experience; and an employee who is required to meet the employer's standard requiring employees to assemble 20 widgets per hour, but who fails to meet such standard because he is physically unable to meet those requirements.

(Adopted effective July 28, 1997)