Chapter § 5-2 § 201.012. Definition of Misconduct

• Jurisdiction: United States

5-2 § 201.012. Definition of Misconduct

(a) "Misconduct" means mismanagement of a position of employment by action or inaction, neglect that jeopardizes the life or property of another, intentional wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or rule adopted to ensure the orderly work and the safety of employees.

(b) The term "misconduct" does not include an act in response to an unconscionable act of an employer or superior.

5-2:1 Commentary

5-2:1.1 The Distinction Between Mere Poor Performance and Misconduct

Employees who are terminated for misconduct do not receive unemployment benefits. But what is misconduct? As a general rule, employees terminated simply for poor job performance will receive unemployment benefits. Consequently, the inability of an employee to perform to the employer's satisfaction is not misconduct. The distinction between mere poor performance and misconduct is sharply defined in two cases, one from the Houston court of appeals, and one from the Fifth Circuit:

• Texas Workforce Comm'n v. City of Houston, 274 S.W.3d 263 (Tex. App.—Houston [1st Dist.] 2008) (firefighter trainee was unable to pass test requiring her to exit a building wearing a blacked-out mask; employer gave her choice of resigning and re-applying later or termination, and she elected termination; appeals court held that trial court incorrectly granted summary judgment to employer because the ability to pass a test was an example of an employee who could not perform her duties to her employer's satisfaction; court explained, however, that there would be misconduct if the employee did not pass by a failure to diligently prepare for the test or make a good faith attempt to pass).
• Elfer v. Texas Workforce Comm'n, 169 F. App'x 378 (5th Cir. 2006) (air traffic controller terminated because of inability to obtain certification for radar-approach control; court notes that evidence showed that he was terminated for inability to perform only one aspect of the job and there was no evidence that employee did not make a good faith attempt to pass exam as job evaluations stated that he was "anxious to succeed" and consistently "strived for excellence"; appeals court reversed TWC finding of misconduct, which was based on a prior TWC precedent that an insurance agent's failure to pass a licensing exam and to obtain a required license was misconduct rather than an inability to perform).

5-2:1.2 Examples of Misconduct

A violation of an...