Franklin v. Employment Dept.

When a claimant, during a negotiated resolution, has agreed to a stipulated order with her employer in which she agrees to a temporary suspension of her license, misconduct has not occurred as defined by ORS 657.610(4).

Franklin on appeal seeks a review of the Employment Appeals Board’s (EAB) final order, that found she was discharged for “misconduct connected with work,” under ORS 657.176(2)(a), and, does not qualify for unemployment benefits. The EAB decided that the error made by claimant while she was working, which led to a disciplinary proceeding against her by the Oregon State Board of Nursing (Board), was not misconduct. But, it was found that the negotiated resolution of that proceeding by Franklin, where she agreed to a temporary suspension of her nursing license, was misconduct. On December 4, 2009, Franklin misread a patient chart, and mistakenly administered 1.0 ml dose of methadone instead of what was originally prescribed. Franklin was suspended, and eventually the Board initiated a disciplinary investigation. As a result, Franklin and the Board agreed to a stipulated order in which she acknowledged that her error constituted “conduct derogatory to the standards of nursing,” and she was consequently denied unemployment benefits because her employer alleged misconduct. Under ORS 657.176(2)(a) an unemployment claimant “shall be disqualified from the receipt of benefits” if she “has been discharged for misconduct connected with work.” Pursuant to ORS 657.610(4) “misconduct” is defined as “the willful or wantonly negligent failure to maintain a license…” The Court of Appeals found that the Employment Department never found that Franklin’s conduct in resolving the disciplinary proceeding was misconduct separate from her medication error. Rather, only the EAB came to that conclusion. Further, the Court found that the facts here support only one conclusion: Franklin’s agreement to the stipulated order is not misconduct because it is not a “failure to maintain a license.” The employer failed to carry its burden in proving that Franklin’s agreement to the stipulated order amounts to a failure to maintain her license, nor was her conduct improper or wrongful. Reversed and remanded.