Dyer v. Director, Department of Workforce Services , 2015 Ark. App. LEXIS 545 ( 2015 )

Cite as 2015 Ark. App. 470
ARKANSAS COURT OF APPEALS
DIVISION IV
No. E-15-149
Opinion Delivered: September 9, 2015
STEVEN DYER
APPELLANT APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
V. [NO. 2015-BR-00223]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and
WAL MART REVERSED AND REMANDED
APPELLEES
WAYMOND M. BROWN, Judge
Appellant Steven Dyer appeals the decision of the Arkansas Board of Review
(Board) denying him unemployment benefits and affirming that he was discharged from
last work for misconduct in connection with the work. We reverse and remand for an
award of benefits.
Dyer began working as a stocker at Wal-Mart in 1999. When he was hired, he was
presented with the employer’s “Associate Arrests and Convictions Policy,” which
provided that employees were subject to suspension for arrests the employer deemed to be
sufficiently job-related. On November 19, 2014, Dyer was arrested and charged with
Third Degree Domestic Battery following an altercation with his estranged wife. He was
suspended.
The Department of Workforce Services issued a Notice on December 22, 2014,
denying Dyer benefits on finding that he was suspended for misconduct. He appealed to
Cite as 2015 Ark. App. 470
the Appeal Tribunal and then to the Board, both of which affirmed the denial of benefits.
He appeals to our court now.
On appeal from the Board, we do not conduct a de novo review; instead, we
review the evidence and all reasonable inferences deductible therefrom in the light most
favorable to the Board’s findings of fact.1 We will affirm the Board’s findings if they are
supported by substantial evidence, which is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.2 Even when there is evidence upon
which the Board might have reached a different decision, the scope of judicial review is
limited to a determination of whether it could have reasonably reached its decision based
upon the evidence before it.3
In the instant case, Dyer’s suspension due to misconduct involved an off-duty
activity. In order for a claimant’s off-duty activities to constitute misconduct connected
with the work, the employer must show, by a preponderance of the evidence, that the
employee’s conduct (1) had some nexus to the work, (2) resulted in some harm to the
employer’s interests, and (3) was in fact conduct which was (a) violative of some code of
behavior contracted between employer an employee, and (b) done with intent or
knowledge that the employer’s interests would suffer.4
1
West v. Director, 94 Ark. App. 381, 231 S.W.3d 96 (2006).
2
Id.
3
Id.
4
Feagin v. Everett, 9 Ark. App. 59, 696 S.W.2d 839 (1983).
2
Cite as 2015 Ark. App. 470
In affirming the conclusions of the Appeal Tribunal, the Board reasoned that a
nexus existed between Dyer’s off-duty activity and his work because his arrest for a violent
crime showed that he could potentially have been a danger to coworkers and customers at
Wal-Mart. It further opined that public knowledge of an employee’s arrest would hurt the
interests of the employer because customers and coworkers might question their safety.
Finally, the Board noted the employer’s “Associate Arrests and Convictions Policy” to
satisfy the third prong of the aforementioned test, that Dyer’s conduct was violative of
some code of behavior contracted between him and the employer.
Here, the Board’s reasoning in denying Dyer benefits lies in direct contravention to
our holding in Baldor Electric Company v. Arkansas Employment Security Department.5 In
Baldor, we affirmed the award of benefits to an employee who had been discharged after
pleading no contest to his second charge of domestic battery. He had been terminated
pursuant to the employer’s past practice of terminating employees who plead guilty to or
who were found guilty of a felony. Similar to its analysis in the instant case, in Baldor, the
Board found that there existed a nexus between the employee’s conduct and the
employer’s desire to promote a safe working environment. However, and despite the fact
that the employer had a past practice of terminating employees guilty of a felony, the
Board did not find that the employee’s off-duty conduct harmed the employer or was
done with the intent or knowledge that the employer’s interests would suffer.
Accordingly, it awarded benefits.
5
71 Ark. App. 166, 27 S.W.3d 771 (2000).
3
Cite as 2015 Ark. App. 470
The facts in Baldor and the facts here are nearly identical except that the employee
in Baldor pleaded no contest twice to domestic battery during his short, two-year
employment, whereas it occurred once with Dyer during a course of employment lasting
approximately fifteen years. Although Dyer’s conduct likely violated a reasonable standard
of conduct his employer could expect of him, upon review of the record, we do not find
substantial evidence that he acted with the intent or knowledge that his employer’s
interests would suffer or that his behavior would harm his employer.
Such off-duty conduct may be sufficient reason for an employer to sever ties with
an employee, but it does not rise to the level of misconduct in connection with the work,
and therefore, cannot be used as a basis for the denial of benefits.
We reverse and remand for an award of benefits.
GLADWIN, C.J., and VIRDEN, J., agree.
Steven G. Dyer, pro se appellant.
Phyllis Edwards, Associate Counsel, for appellee.
4