State Emp't Sec. Div. v. Murphy, No. 65681.

• Docket Nº: No. 65681.
• Citation: 371 P.3d 991, 132 Nev. Adv. Op. 18
• Case Date: March 31, 2016
• Court: Supreme Court of Nevada

371 P.3d 991
132 Nev. Adv. Op. 18

The STATE of Nevada EMPLOYMENT SECURITY DIVISION; Renee Olson, In Her Capacity as Administrator of the Employment Security Division; and Katie Johnson, In Her Capacity as Chairperson of the Employment Security Division Board of Review, Appellants
v.
Calvin Steven MURPHY, Respondent.

No. 65681.

Supreme Court of Nevada.

March 31, 2016.

371 P.3d 992

J. Thomas Susich and Neil A. Rombardo, State of Nevada Employment Security Division, Carson City, for Appellants.

Nevada Legal Services, Inc., and Ron Sung and I. Kristine Bergstrom, Las Vegas, for Respondent.

Before the Court En Banc.

OPINION

By the Court, HARDESTY, J.:

In this appeal, we are asked to consider whether an employee who is terminated because he or she misses work due to incarceration has committed disqualifying misconduct pursuant to NRS 612.385 and is thus not entitled to unemployment benefits. Based on the plain language of the statute and narrowly construing State, Employment Security Department v. Evans, 111 Nev. 1118, 901 P.2d 156 (1995), we conclude that an employee who is terminated as a result of missing work due to incarceration, and who is subsequently convicted of a crime, is not eligible for unemployment benefits.

FACTS AND PROCEDURAL HISTORY

Respondent Calvin Murphy was employed by Greystone Park Apartments. He was arrested for possession of stolen property and could not afford his $40,000 bail. He eventually pleaded guilty and was incarcerated for approximately one year. Murphy was fired by Greystone because of his unexcused absences caused by his incarceration. Appellant Nevada Employment Security Division's (ESD) claims adjudicator, the appeals referee, and the ESD Board of Review all determined that Murphy committed disqualifying misconduct pursuant to NRS 612.385 and was therefore not entitled to unemployment benefits. Specifically, the appeals referee found that Murphy admitted to the criminal conduct that caused his incarceration, and the Board of Review adopted that finding.

Murphy petitioned the district court for judicial review, and the court reversed the ESD Board of Review's decision. The district court reasoned that the only misconduct connected with work was Murphy's absenteeism,

371 P.3d 993

which was insufficient as a matter of law to deny benefits. We disagree and thus reverse.

DISCUSSION

Standard of review

Like the district court, we review an administrative unemployment compensation decision “to ascertain whether the Board acted arbitrarily or capriciously, thereby abusing its discretion.” Clark Cty. Sch. Dist. v. Bundley, 122 Nev. 1440, 1444, 148 P.3d 750, 754 (2006). “[T]he Board acts as an independent trier of fact,” and its factual findings are conclusive when supported by substantial evidence. Id. (internal quotations omitted). “Substantial evidence is that which a reasonable mind could find adequate to support a conclusion.” Kolnik v. Nev. Emp't Sec. Dep't, 112 Nev. 11, 16, 908 P.2d 726, 729 (1996). Additionally, “fact-based legal conclusions with regard to ... unemployment compensation [issues] are entitled to deference.” Bundley, 122 Nev. at 1445, 148 P.3d at 754. However, purely legal questions, including issues of statutory construction, are reviewed de novo. Id.; see also Sonia F. v. Eighth Judicial Dist. Court, 125 Nev. 495, 499, 215 P.3d 705, 707 (2009).

Murphy's absenteeism due to his incarceration was disqualifying misconduct

Unemployment compensation in Nevada is designed to ease the economic burden on those who are “unemployed through no fault of their own.” Anderson v. State, Emp't Sec. Div., 130 Nev. ––––, ––––, 324 P.3d 362, 368 (2014) (internal quotations omitted); see also A.B. 93, 38th Leg. (Nev. 1937) (Nevada's original bill enacting the unemployment insurance statute). A person is not disqualified from receiving unemployment benefits simply because he or she is terminated:

Disqualifying misconduct occurs when an employee deliberately and unjustifiably violates or disregards h[is] employer's reasonable policy or standard, or otherwise acts in such a careless or negligent manner as to show a substantial disregard of the employer's interests or the employee's duties and obligations to [his] employer. As we have previously suggested, because disqualifying misconduct must involve an element of wrongfulness, an employee's termination, even if based on misconduct, does not necessarily require disqualification under the unemployment compensation law.

Bundley, 122 Nev. at 1445–46, 148 P.3d at 754–55 (internal footnotes and quotations omitted).

Three statutes can disqualify former employees from receiving unemployment benefits.¹ The pertinent statute here is NRS 612.385, and it provides that “[a] person is ineligible for benefits ... if he or she was discharged ... for misconduct connected with the person's work.”

Here, Murphy's employment was terminated because he failed to show up at work due to his incarceration. We were presented with a similar issue in Evans and held that the terminated employee was eligible for unemployment benefits. 111 Nev. at 1119, 901 P.2d at 156. In so holding, we determined that because the employee's unavailability to “work was due to her pretrial incarceration which was predicated on her inability to obtain bail, not her criminal conduct,” id., the employee's absence was neither deliberate nor voluntary, and we noted that the employee had dutifully notified the employer of the situation. Id. at 1119, 901 P.2d at 156–57.

Murphy urges this...