At some point on your first day of your employment, you were probably given a booklet or pamphlet explaining the duties you owe your employer.  Your boss or a human resources employee may have explained it to you just before you signed off agreeing you'd receive the personnel manual.  Maybe at some point, that person said, “Oh, this rule gets broken all the time.”  The thing is, if somewhere along the line you break that rule and get fired for it, you are being fired for misconduct.  And if you are fired for misconduct, you cannot get unemployment benefits in Iowa. Misconduct is misconduct with few exceptions. Not to say we can't win some of these cases, but generally speaking don't get fired for misconduct. 

My mother was fond of saying, "Two wrongs don't make a right." I suspect her saying applies in this case. Steve Lombardi

Administrative Law Judge Susan D. Ackerman decided as much on March 3rd, 2014.  In the case of Ben Schweitzer v. Hy-Vee, Inc., assistant manager Ben Schweitzer was fired after he took a bottle of juice during his shift and drank it without paying for it.  Whether he intended to pay for it is unclear.

“Misconduct that disqualifies an individual from receiving unemployment insurance benefits occurs when there are deliberate acts or omissions that constitute a material breach of the worker’s duties and obligations to the employer.…When a claimant intentionally disregards the standards of behavior that the employer has a right to expect of its employees, the claimant’s actions are misconduct.”

The Judge decided that since Mr. Schweitzer took company property, he committed a serious violation of the duty owed to his employer. 

There were a few other factors that the Judge mentions in her decision as well: first, Mr. Schweitzer had previously signed a copy of the company policies, which included a prohibition on taking employer property without paying for it.  Second, he admitted that his behavior wouldn’t have been tolerated if a customer had done it.  Third, although he claimed that the policy wasn’t enforced, he didn’t provide any evidence of that other than his own testimony—the testimony of someone who had essentially stolen property of the employer.

Perhaps even if Mr. Schweitzer had done all of these things, he still would have been found to have committed misconduct and denied unemployment benefits.  What I'm learning from working with Steve and Katrina is that hiring a lawyer matters. Having a lawyer to confer with about the process and how testimony matters I am finding out that had he had a lawyer, he might have fared better because they know how to use a subpoena to get the testimony you need. They aren't shy about subpoening witnesses or documents that may have proven what he did was not out of the ordinary for HyVee employees behavior.  In any event, in this case at least, now we know that all of those rules in that handbook matter.

I like to say to my clients, "Help me to help you."  If we can help you call the Lombardi Law Firm to speak with attorneys Steve Lombardi and Katrina Schaefer. We can be reached at 515-222-1110 or by emailing us at [email protected] and [email protected] We look forward to your call.

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