Ask The Lawyer By: Daniel A. Gwinn, Esq. – I am guilty of misconduct?


QUESTION:  The place I worked had a policy against accessing a personal email account on a company computer. Several weeks ago, my phone pinged with a notification that I had an email from my sister about our mom, who was in the hospital and was in very frail health. I have trouble reading emails on my phone, and I was worried sick about my mom, so I checked the email – very quickly – on my work computer. It turned out to be nothing too serious, just a report that mom had undergone some tests and was waiting results. The next day, I was fired for violating company policy. I applied for unemployment, but my former employer has challenged my eligibility, claiming that I am guilty of misconduct. Can they do that?

ANSWER: Your former can certainly claim that you are ineligible for unemployment due to misconduct, but might have trouble proving that – especially if you put up a good fight.

Michigan’s Employment Security Act (MES), which governs unemployment benefits, denies benefits to employees who engage in misconduct. However, the burden of proving misconduct is on the employer, and that burden is not light.

According to the Michigan Supreme Court, “misconduct” under Section 29(1)(b) of the MES Act) must evince “such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior …  or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests.” Poor performance at a job, despite trying your best, is not necessarily misconduct, nor are isolated instances of ordinary negligence or good-faith errors in judgment or discretion.

So, what is misconduct? Here are a few examples: An excessive number of absences or tardiness, without good reason, intoxication at work, theft from the employer, repeated and deliberate violations of an employer’s policy, damaging an employer’s property (in one case an unhappy worker threw a two-by-four through a window), and, of course, violence in the workforce (such as an employee who punched his foreman in the nose following a disagreement). Misconduct away from work may be enough to justify denial of employment benefits if it negatively affects the employer’s interests, even where the misconduct is not directly related to work.

Michigan’s Courts have also ruled that while a breach of a company’s rules may justify an employer’s decision to discharge an employee – Michigan is, after all, at “at-will” employment state – not every breach “rises to the level of misconduct” needed to disqualify the employee from unemployment benefits. For example, an employee who accessed a company computer for flight information to assist a customer – a violation of company policy – had not engaged in misconduct under the MES, and was eligible for unemployment benefits. More recently, Michigan’s Court of Appeals has ruled that while an employer may fire a worker for legal off-duty use of marijuana, as a violation of a workplace drug policy, the violation of the policy is not misconduct under the statute.

If your access of your personal email account on your work computer was a one-time event, and did not damage your employer’s interests, it is most likely a “good-faith error in judgment” and not “evil design” and not misconduct. You should be eligible for benefits while you look for a new job.

However, if the Unemployment Insurance Agency has sided with your employer, and determined that you are ineligible for benefits, you need to act quickly to challenge that finding. If the Agency has formally found you ineligible for benefits due to misconduct, you should have a letter to that effect from the Agency, which will outline your appeal rights and deadlines. You may want to seek help from an attorney.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
(248) 970-0311 facsimile