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Gupta v. Board of Review, Department of Labor

A-2163-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

UNEMPLOYMENT BENEFITS—A restaurant manager who tells an employee who is swearing to “Shut up!” can be fired for the outburst, but the outburst may not be misconduct of the type that would cost the fired employee unemployment benefits.

The senior assistant manager of a fast food restaurant was fired. While serving as manager one day, the restaurant’s cashier yelled to another employee “in front of a full line of customers, ‘stop f…ing up my orders and get my food out!’” The assistant manager told the employee, “shut up!” The company determined that the assistant manager’s “exhortation to the cashier (who was suspended for her comment) was ‘unprofessional’ and discharged him.”

The Unemployment Appeal Tribunal believed that the assistant manager’s “action in failing to act in an appropriate and professional manner in dealing with a subordinate ... reflected on the public’s image of the employer, which was the cause of the discharge.” It believed that the assistant manager had disregarded the “standards of behavior which the employer ha[d] a right to expect of [its] employees. Therefore, shouting “shut up! under the circumstances constituted misconduct connected with the work.” Discharge for misconduct connected for work results in disqualification of unemployment benefits for the week in which the suspension or discharge takes place and for the five weeks immediately thereafter.

Case law hold that “misconduct” involves “willfulness, deliberateness and intention.” “Inadvertent or unintentional acts, or simple neglectful conduct not amounting to a wanton disregard of consequences will not qualify.” Here, the Appellate Division recognized that although the assistant manager “could have more politely counseled his subordinate not to use obscene language in front of customers, without telling her to ‘shut up,” this transgression simply constituted a deviation on [the assistant manager’s] part from ‘ideal restraint.’ It did not constitute ‘deliberate and willful disregard of [his employer’s] standards of conduct.’” The Court refused to “disregard the work environment in which the incident occurred; an overcrowded fast food restaurant in which employees were yelling at each other and at customers.” Although the assistant manager’s conduct provided a proper basis for discharge, it did not “constitute misconduct within the intent of the unemployment compensation law.” For that reason, the Appellate Division reversed the finding of the Unemployment Board of Review.

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