Section 7-312. MISCONDUCT

 

312.1Pursuant to §10(b) of the Act, the Director shall disqualify for benefits any individual discharged for misconduct occurring in his/her most recent work. The nature of the disqualification shall be in accordance with §10(b) (1) or §10(b) (2) of the Act as defined in §312.3, §312.4, §312.5 and §312.6 of this section.

 

312.2The party alleging misconduct shall have the responsibility to present evidence sufficient to support a finding of misconduct by the Director.

 

312.3For purposes of §10(b) (1) of the Act, the term "gross misconduct" shall mean an act which deliberately or willfully violates the employer's rules, deliberately or willfully threatens or violates the employer's interests, shows a repeated disregard for the employee's obligation to the employer, or disregards standards of behavior which an employer has a right to expect of its employee.

 

312.4Gross misconduct may include, but is not limited to the following:

 

a.Sabotage;

 

b.Unprovoked assault or threats;

 

c.Arson;

 

d.Theft or attempted theft;

 

e.Dishonesty;

 

f.Insubordination;

 

g.Repeated disregard of reasonable orders;

 

h.Intoxication, the use of or impairment by an alcoholic beverage, controlled substance, or other intoxicant;

 

i.Use or possession of a controlled substance;

 

j.Willful destruction of property;

 

k.Repeated absence or tardiness following warning.

 

312.5For purposes of §10(b) (2) of the Act, the term "other than gross misconduct" shall mean an act or omission by an employee which constitutes a breach of the employee's duties or obligations to the employer, a breach of the employment agreement or contract, or which adversely affects a material employer interest. The term "other than gross misconduct" shall include those acts where the severity, degree, or other mitigating circumstances do not support a finding of gross misconduct.

 

312.6Other than gross misconduct may include, but is not limited to the following:

 

a.Minor violations of employer rules;

 

b.Conducting unauthorized personal activities during business hours;

 

c.Absence or tardiness where the number of instances or their proximity in time does not rise to the level of gross misconduct;

 

d.Inappropriate use of profane or abusive language.

 

312.7If a violation of the employer's rules is the basis for a disqualification from benefits pursuant to §10(b) (1) or §10(b)(2) the Act, the Director shall determine the following:

 

(a)That the existence of the employer's rule was known to the employee:

 

(b)That the employer's rule is reasonable; and

 

(c)That the employer's rule is consistently enforced by the employer.

 

312.8In an appeal hearing, no misconduct shall be presumed. The absence of facts which affirmatively establish misconduct shall relieve a claimant from offering evidence on the issue of misconduct.

 

312.9In an appeal hearing, the persons who supplied the answers to questionnaires or issued other statements alleging misconduct shall be present and available for questioning by the adverse party.

 

312.10In an appeal hearing, prior statements or written documents, in the absence of other reliable corroborating evidence, shall not constitute evidence sufficient to support a finding of misconduct by the Director.

 

source

Notice of Final Rulemaking published at 41 DCR 4167-69(June 24, 1994).