Fifth District upholds Harrison in unemployment benefits dispute

By Steve Korris | Aug 18, 2011

MOUNT VERNON – Madison County Associate Judge Clarence Harrison correctly denied unemployment benefits to dental assistant Amy Delong, Fifth District appellate judges ruled on Aug. 4.

MOUNT VERNON – Madison County Associate Judge Clarence Harrison correctly denied unemployment benefits to dental assistant Amy Delong, Fifth District appellate judges ruled on Aug. 4.

Justices James Donovan and James Wexstten ruled that Delong committed misconduct when she refused to sign an employee conduct policy.

"Standards of behavior that an employer has a right to expect in the workplace constitute reasonable rules and policies," Donovan wrote.

He and Wexstten affirmed Harrison, who found dentist Anna Smith revised her attendance policy in response to staffing issues Delong's absences created.

Presiding Judge Melissa Chapman dissented, finding Delong's refusal to sign wasn't the type of statutory misconduct that would deprive her of benefits.

Smith, of Dentistry With TLC, hired Delong in January 2008.

That September, Smith circulated new policies and asked for signatures.

She wrote, "If you have an emergency and you can't be here you must find someone to cover your schedule.

"If you can't find someone to cover your schedule you must be here."

"If your child is sick you must have a babysitter who can watch your child at any given time.

"You must have a back up babysitter for the back up babysitter."

She wrote that an employee with no support network needs to stay at home with the children on a daily basis.

Delong didn't sign the policies, and Smith discharged her.

Delong sought benefits under the employment security act, and Smith opposed her.

At a hearing before a review board referee in the state department of employment security, Smith testified that she met with Delong three times about signing.

Smith testified that she changed the rules because Delong repeatedly came late to work, traded shifts with others, and was absent for various excuses.

She testified that Delong could have continued working if she had signed.

Delong testified that she believed Smith would use the policy against her.

She testified that the new rules contained terms and conditions different from those when she began her employment.

She testified that she didn't have to sign the original rules.

She testified that she missed four days in nine months.

The review board rejected benefits, and so did Harrison and the Fifth District.

Donovan wrote, "We acknowledge that the purpose of the Act is to provide monetary benefits to unemployed workers to alleviate the hardships of involuntary unemployment.

"The receipt of benefits is conditional, however, and the claimant has the burden of proving that he or she is entitled to unemployment benefits.

"Because the Act is not intended to benefit employees who are discharged on account of their own misdeeds, employees are ineligible for unemployment benefits if they have been discharged for work related misconduct.

"The requirement that employees sign the rules was reasonable because it ensured that each employee knew and understood the rules."

He found no evidence that Smith applied the new rules to Delong or anyone else.

"While plaintiff believed that she would not be able to comply with the rules and would eventually be terminated, those actions had not yet occurred," he wrote.

"While some of the statements in the policy appear to reflect a questionable bias of employer, plaintiff chose the wrong time and possibly even the wrong court to fight over the reasonableness of those statements and the policy as a whole," he wrote.

Dissenter Chapman asked, "What if the new policy rules were not just unreasonable, as Amy asserts, but instead were of a criminal or immoral nature?

"Would the majority still conclude that Amy's refusal to sign the acknowledgement amounted to misconduct under the Act?"

She found the first rule unreasonable.

"It takes little imagination to conjure up any number of factual scenarios where adherence to this work rule would become impossible," she wrote.

"For example, Amy is hit by a train and lies in a coma but must get up and go to work because she cannot get someone else to cover her schedule," she wrote.

Larry Taliana represents Smith and her clinic.

Tom Falb represents Delong.

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