Is sleeping on the job worker misconduct?

DEAR CARRIE: In February I fired a salesman from my new-car dealership for sleeping at his desk. His colleagues say he has done that several times before. The worker has been collecting unemployment benefits ever since, which can affect my unemployment insurance rates.

When I objected, the state Labor Department  determined that he is eligible for benefits because "he was discharged with no prior warning" and "could not have known his job was in jeopardy for sleeping on the job." My employee handbook clearly states that workers must be "alert." It should be obvious that means no sleeping on the job. Is this a fair decision by the Labor Department? -- Benefits Awry?

DEAR BENEFITS: Your quandary will no doubt leave some people shaking their heads. I decided to get comment from a lawyer who represents employers and one who represents employees. The department's finding also states that the employee's "actions do not rise to the level of misconduct pursuant to NYS unemployment insurance law." So the department concluded that the employee you fired can collect unemployment benefits.

Attorney Ellen Storch, of Kaufman Dolowich Voluck & Gonzo, a Woodbury firm that represents employers, disagrees and believes you should continue to press your case.

"The employer should consider objecting to the determination," Storch said. "It is well settled that conduct that is detrimental to an employer's interest constitutes misconduct and disqualifies a claimant from receiving benefits."

What's more, she said, "It cannot be in an employer's interest to pay an employee to sleep rather than to work. Moreover, there are cases holding that sleeping on the job constitutes disqualifying misconduct, that make no mention of prior warnings or policies prohibiting sleeping."

She said, however, that you should try to prevent future problems like this.

"In order to minimize the likelihood of such outcomes, employer handbooks should contain broadly worded lists of prohibited activities," she suggested.

Alan Sklover, senior partner of Manhattan-based Sklover & Donath who represents employees, agrees that sleeping on the job usually constitutes "sufficient misconduct." In fact, he says, "As an employer, myself, I would fire an employee who slept on the job at my law firm."

But he quickly cautioned, ". . . There are possible facts in this case -- and one big fact that even the reader mentions in his letter -- that could very well excuse the sleeping, and make the Labor Department's decision in this case entirely sensible and reasonable."

That involves whether sleeping on the job was condoned. The facts suggest that it was at one point, said Sklover, the author of "Fired, Downsized, or Laid Off: What your employer doesn't want you to know about how to fight back" (Henry Holt and Co., 2000).

For example, you mentioned that others were "aware of the nap-taker's past slumbering," and that knowledge did not lead to his immediate firing, Sklover pointed out.

"If one of those 'alert' colleagues was the sleeper's supervisor, then even his loud snoring would not be deemed misconduct sufficient to deny unemployment insurance, as it would have made it permitted conduct," he said. "This is probably what the hearing officer meant by 'no prior warning.' "

Also he said, "If an employer condoned sleeping on the job, that could change . . . the Labor Department's view, about what took place at your car showroom from obvious misconduct into acceptable conduct. That is, if the sleeping employee's direct supervisor permitted that employee -- and others -- to take naps on the job when no customers were present, in the law, and in common sense, that could, well, excuse the snoozing."