Careless acts may negate benefits
Published 07/22/05

If a worker's firing results from recurring careless or negligent acts or a single deliberate violation of a company rule that is reasonably designed to protect the legitimate business interests of the employer, the fired worker may not be entitled to unemployment benefits.

This point was illustrated in June 24, 2005 New Hampshire Supreme Court decision of Appeal of Simone Riendeau . In that case, Riendeau appealed the decision of the appeal tribunal of the New Hampshire Department of Employment Security finding her ineligible for unemployment benefits because she was fired for selling cigarettes to a minor.

Riendeau was employed at Cumberland Farms in Nashua , beginning in November 2002, as a part-time customer service associate. Her primary responsibility was assisting customers at the cash register. She was a good employee with no warnings or disciplinary issues. Cumberland Farms had a company policy that stated employees must ask a customer who appears to be under the age of thirty, for identification when purchasing an age restricted product, such as tobacco or alcohol.

Riendeau was given the employee handbook setting forth this policy, which she was required to review and sign during the first week of employment. The handbook also stated the sale of cigarettes to minors was against state law and "[a] violation of the procedures that results in the sale of tobacco products under the age of eighteen (18) will result in immediate dismissal". Riendeau was required to watch a twenty-minute training video on preventing underage sales of tobacco products and attended and passed a course on preventing underage sales of tobacco products.

In addition, the cash registers are programmed to put a "red flag" when an employee scans a pack of cigarettes or any other age-restricted product. The program requires the employee to affirm that the person appears to be thirty or older before completing the sale without verifying the customer's age. The employee must push the clear button twice to override the program and complete the sale.

On October 21, 2003, in the early evening hours, Riendeau was alone at the cash register while another employee was on break. The store was particularly busy. There was a line of customers in front of her and a young girl off to the side who wanted to buy cigarettes. She looked at the young girl but testified that she didn't really have time to really think whether or not she was under thirty or not. Riendeau rang up the sale on the cash register.

In doing so, she did not ask the customer for identification and pushed the clear button twice, affirming that the customer appeared to be age thirty or older. Ten minutes after the sale, a Nashua police officer involved in a sting operation entered the store and gave Riendeau a summons for selling tobacco products to a person under the age of eighteen. The next day, Riendeau was fired from her job.

The Court noted that Riendeau had failed to follow a company policy, which required her to verify the age of all customers who appeared under thirty. Riendeau failed to look at the customer before the purchase, then overrided the computer on the question of the sale to someone under thirty, and lastly handled the customer's payment, all of which were obviously deliberate acts, which were found by the tribunal to be deliberate violation of Cumberland Farms policies. Because Cumberland Farms had clearly identified and explained company policies on the sale of age-restricted products by the cashiers, and stressed the importance of following those policies, when they fired a worker violating those policies, that worker was unable to get unemployment compensation.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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