Fox v. Employment Department

A decision under OAR 471-030-0038 denying unemployment benefits for misconduct will not stand unless there are clear findings on intent. Conduct that amounts to an irreparable breach of trust does not remove the need to examine intent.

Lisa Fox (Fox) appealed a judgment of the Employment Appeals Board (EAB) finding her ineligible for unemployment insurance benefits. Fox was employed by Kaiser Foundation Health. Running late for work, to save time Fox illegally parked. She clocked in and then proceeded back outside to move her car. At the end of the month Fox was terminated for time card fraud. Fox applied for unemployment and was denied. Upon appeal, the ALJ determined that due to the lack of a sufficient mens rea, there was no misconduct. Upon subsequent appeal, the EAB found Fox had engaged in misconduct. In their decision they did not include a finding concerning Fox’s intent because there was an irreparable breach of trust. Fox appealed. Under ORS 657.176(2)(a), an individual discharged for misconduct is not entitled to receive unemployment benefits. Misconduct" is defined in OAR 471-030-0038(3)(a) as "a willful or wantonly negligent violation of the standards of behavior or disregard of employer's interest. A decision under OAR 471-030-0038 will not stand unless there are clear findings on intent. Conduct that amounts to an irreparable breach of trust does not remove the need to examine intent. Reversed and Remanded for Reconsideration.