Jonathan P. Baird

From afar, I have followed with interest the debate over New Hampshire’s new unemployment law about gross misconduct. Without any basis, opponents have claimed that workers who steal from employers will be able to collect benefits. Under the new law, just as under the prior law, workers who steal from employers in an amount less than $500 will be denied benefits on the ground of misconduct.
It was hard to take seriously the allegation that the new law rewarded bad behavior or countenanced stealing from an employer. The people saying this have little knowledge about how the unemployment system actually works. Or they are fabricating this charge for perceived political gain.
The problem with the old law was that it inflicted the same very lengthy disqualification and penalty on someone whose minor misconduct involved 35 cents as someone whose gross dishonesty involved $100,000, instead of making the severity of the penalty match the seriousness of the offense.
The law change was necessary because workers were being harmed by the old law. The state previously over-utilized the gross misconduct disqualification and wrongly
denied workers who never should have faced that charge.

Mr. 10/22
The best way I can illustrate the problem with the old law is a story. Back in the 1990s, I represented a guy from Newport named Harry King. King, who has now passed away, was a Vietnam veteran, a Little League coach and a hell of a nice guy. Since coming back from Vietnam, he had worked at the Sturm Ruger gun factory in Newport for 22 years.
By all accounts, King was a good worker. Co-workers called him Mr. 10/22 after the rifle he worked on.
One morning he came to work early, around 6 o’clock, and wanted to buy a cup of coffee from the machine in the shop. The coffee cost just 35 cents. King had a $10 bill in his pocket and no change. On a nearby supervisor’s desk, he spotted some spare change. He took 35 cents off the desk and bought himself a cup of coffee. He intended to pay it back.
King went back to work. Later that morning he got called into the office. The company accused him of stealing the 35 cents. Officials had the theft on videotape. The company claimed that money had been disappearing off of that supervisor’s desk and they had secretly placed a hidden camera nearby to monitor the desk.
After 22 years on the job, Ruger terminated King for the alleged theft of 35 cents. Because he had no other source of income, King filed a claim for unemployment benefits. The state Department of Employment Security denied his claim on grounds of both misconduct and gross misconduct.
The “theft” of 35 cents was considered dishonesty and therefore not just “misconduct” under the law but “gross misconduct.” Gross misconduct has harsher consequences for a worker than simple misconduct. In addition to being denied benefits at that time, the worker loses all wage credits, effectively denying any possibility of collecting for a long time.
King went to an appeal tribunal hearing in which he represented himself – and lost.
He then sought counsel from New Hampshire Legal Assistance. I handled his case and filed an appeal with the Employment Security commissioner arguing his denial was an error of law. The agency reopened the case and allowed a new hearing on the merits of the case. We subsequently had a full hearing in which Ruger brought eight witnesses to testify against King.
The appeal tribunal reversed the decision in King’s favor. Both the findings of misconduct and gross misconduct were overturned. The appeal tribunal found that King did not have the intent to steal anything.
King’s case is indicative of the typical misuse of the old gross misconduct statute. Dishonesty could be broadly construed.
The case got some publicity. Bob Hohler, a former Monitor reporter, wrote a sympathetic story about the case that appeared in the Boston Sunday Globe. After that, a lowbrow TV newsmagazine of the era, A Current Affair, did a segment about the case that aired nationally. The Boston TV stations covered the appeal tribunal hearing.
New law
The new law, House Bill 1168, clarified the circumstances in which Employment Security could invoke the gross misconduct disqualification. Previously, the law denied workers who committed arson, sabotage, felony, assault which causes bodily injury, and “dishonesty.”
The problem with the old law was the vagueness of the term “dishonesty.” While the other offenses are clear on their face, dishonesty is much more slippery terminology. As the King case demonstrates, almost any factual dispute where parties disagree could be mischaracterized as dishonesty by a party. Employment Security had a bad habit of overusing this disqualification when simple misconduct was the more appropriate charge.
House Bill 1168 replaced the offense of dishonesty with theft in an amount greater than $500. Theft in an amount over $500 is more consistent with the other serious crimes outlined in the statute. Again, stealing $5 or anything less than $500 will still cause you to be disqualified from receiving unemployment benefits. But you won’t also lose all your wage credits, so that if you get another job and then get laid off from the new job, you may be able to collect.

Business support
The new law was a cooperative venture supported by labor, business and Employment Security. The Unemployment Compensation Advisory Council, which includes representatives of business and labor, supported the bill. It passed the House Labor Committee on a 17-0 vote. There were two hearings. Business interests did not oppose the bill when it was before the Legislature. It passed both Houses on an overwhelming vote.
If this was such a harmful bill to employers, why did it sail through unopposed? The business lobbyists were not asleep at the wheel. They were there 24/7 and they knew all about it.
What seems to be going on is an effort, after the fact, to mislead the public. I find it reminiscent of the Shirley Sherrod case. First, present a sensationalist picture based on distortion and misinformation. Then claim a harm. Have little or no regard for the truth. Try to gain partisan political advantage in the wake of the confusion you have created.
The cynical underlying assumption is that the only thing the public will remember is the accusation that workers who steal from employers will be rewarded. This is a new version of the Big Lie technique. Politicians who go down this road should not be rewarded.