                                                 132 Nev., Advance Opinion        IS
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                THE STATE OF NEVADA                                 No. 65681
                EMPLOYMENT SECURITY DIVISION;
                RENEE OLSON, IN HER CAPACITY AS
                ADMINISTRATOR OF THE
                EMPLOYMENT SECURITY DIVISION;
                AND KATIE JOHNSON, IN HER
                                                                             FILED
                CAPACITY AS CHAIRPERSON OF THE                                MAR 3 1 2016
                EMPLOYMENT SECURITY DIVISION                                      K LINDEMAN
                BOARD OF REVIEW,
                                                                        BY    ialatil
                Appellants,                                                  CHIEF DEP ERn

                vs.
                CALVIN STEVEN MURPHY,
                Respondent.



                           Appeal from a district court order granting a petition for
                judicial review in an unemployment benefits matter. Eighth Judicial
                District Court, Clark County; Kenneth C. Cory, Judge.
                           Reversed.


                Joseph L. Ward, Jr., Senior Legal Counsel, 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.



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                                                  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



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                 absenteeism, 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., Adv. Op. 32, 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:


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                                  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.' 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


                      "Two of those statutes are not germane to this appeal: NRS 612.380
                applies when an employee voluntarily leaves without good cause or to seek
                other employment, and NRS 612.383 applies when an employee is
                discharged for crimes committed in connection with employment.

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                      employee had dutifully notified the employer of the situation. Id. at 1119,
                      901 P.2d at 156-57.
                                   Murphy urges this court to read Evans broadly and create a
                      bright-line rule that no disqualifying misconduct occurs when an employee
                      cannot attend work due to incarceration and the employee dutifully
                      notifies the employer. We decline to do so and conclude that Evans must
                      be narrowed and clarified to align with NRS 612.385's plain language 2


                            2 Ifwe were to read Evans broadly, as Murphy proposes, Nevada may
                      become the only state that widely grants incarcerated claimants
                      unemployment benefits, regardless of fault or conviction. For example,
                      New Jersey has determined that incarceration, regardless of fault, results
                      in disqualification from benefits. See Fennell v. Bd. of Review, 688 A.2d
                      113, 116 (N.J. Super. Ct. App. Div. 1997) (finding that "[n]o matter how
                      sympathetic the facts," a claimant who lost his job because of incarceration
                      is disqualified from benefits under a voluntary leaving statute). Other
                      states have decided that claimants are disqualified when at fault or
                      culpable for their incarceration under either a misconduct or voluntary
                      quitting statute. See, e.g., Weavers v. Daniels, 613 S.W.2d 108, 110 (Ark.
                      Ct. App. 1981) (finding that a failure to attend work due to fault-based
                      incarceration is disqualifying misconduct); Hillsborough Cty., Dep't of
                      Emergency Med. Servs. v. Unemp't Appeals Comm'n, 433 So. 2d 24, 25
                      (Fla. Dist. Ct. App. 1983) (same); Carter v. Caldwell, 261 S.E.2d 431, 432
                      (Ga. Ct. App. 1979) (same); Grimble v. Brown, 171 So. 2d 653, 656 (La.
                      1965) (same); Smith v. Am. Indian Chem. Dependency Diversion Project,
                      343 N.W.2d 43, 45 (Minn. Ct. App. 1984) (same); Stanton v. Mo. Div. of
                      Emp't Sec., 799 S.W.2d 202, 205 (Mo. Ct. App. 1990) (same); Weems v.
                      Unemp't Comp. Bd. of Review, 952 A.2d 697, 699 (Pa. Commw. Ct. 2008)
                      (same); see also Bivens v. Allen, 628 So. 2d 765, 767 (Ala. Civ. App. 1993)
                      (determining that a failure to attend work due to incarceration amounts to
                      a voluntary leaving); Sherman I Bertram, Inc. v. Cal. Dep't of Emp't, 21
                      Cal. Rptr. 130, 133 (Dist. Ct. App. 1962) (same). In addition, Kentucky
                      and Michigan have statutes that specifically disqualify persons at fault for
                      their incarceration from receiving unemployment benefits. Ky. Rev, Stat.
                      Ann. § 341.370(6) (LexisNexis 2011); Mich. Comp. Laws § 421.29(1)(f)
                      (2013).


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                   NRS 612.385's plain language
                               When unambiguous, this court gives effect to a statute's plain
                   meaning. Sonia F., 125 Nev. at 499, 215 P.3d at 707. Pursuant to NRS
                   612.385, a person who is discharged "for misconduct connected with the
                   person's work" is ineligible for unemployment compensation.
                   "Misconduct" is defined as "unlawful, dishonest, or improper behavior."
                   Misconduct, Black's Law Dictionary (10th ed. 2014); see also Bundley, 122
                   Nev. at 1445-46, 148 P.3d at 754-55 (determining that misconduct
                   requires deliberate or careless action in "disregard of the employer's
                   interests" such that there is "an element of wrongfulness" (internal
                   quotations omitted)). Clearly, an employee who has been incarcerated
                   because of criminal conduct is being penalized for unlawful and improper
                   behavior, and in committing that behavior, the employee has carelessly
                   disregarded the employer's interest in having an available workforce. See
                   Bundley, 122 Nev. at 1445-46, 148 P.3d at 754-55. "Connected" is defined
                   as "W oined; united by junction .. . [or] by dependence or relation."
                   Connected, Black's Law Dictionary (6th ed. 1990). The misconduct here is
                   connected with work because an employee's unauthorized absence affects
                   an employer's ability to efficiently operate its business. See Bundley, 122
                   Nev. at 1450, 148 P.3d at 757. In effect, the employee who commits a
                   crime has chosen to become unavailable for work. Based on a plain
                   reading of NRS 612.385, an employee who is terminated as a result of
                   missing work due to incarceration after being convicted of a crime is not
                   eligible for unemployment benefits.
                               We believe that our holding in Evans can be construed to align
                   with NRS 612.385's plain meaning. Though not entirely clear, based on
                   the facts as stated in the majority opinion, it appears that Evans applied
                   for unemployment benefits before being adjudicated on the crimes
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                  charged. See 111 Nev. at 1119, 901 P.2d at 156 ("Evans failure to be
                  available for work was due to her pretrial incarceration[,] which was
                  predicated on her inability to obtain bail, not her criminal conduct.").
                  Although the cases were not cited in Evans, it appears this court intended
                  Nevada jurisprudence to align with other jurisdictions that recognize
                  claimants' limited right to receive unemployment benefits when their
                  incarceration was caused by indigence or criminal charges that were
                  subsequently dropped. See, e.g., Kaylor v. Dep't of Human Res., 108 Cal.
                  Rptr. 267, 268-69, 271 (Ct. App. 1973) (holding that a claimant jailed
                  because of an inability to pay a traffic fine was not disqualified from
                  unemployment benefits); Holmes v. Review Bd. of Ind. Emp't Sec. Div.,     451
                  N.E.2d 83, 88 (Ind. Ct. App. 1983) (holding that a claimant was not
                  disqualified from unemployment benefits because of pretrial incarceration
                  where charges were later dismissed). Admittedly, the Evans dissent calls
                  the majority's application into question, see 111 Nev. at 1119-20, 901 P.2d
                  at 157 (Steffen, C.J., and Young, J., dissenting), but we believe the
                  opinion's general proposition to be sound. Thus, we take this opportunity
                  to clarify and narrow Evans' holding. If an employee seeks benefits
                  because of incarceration caused by an inability to afford bail or pay a fine,
                  and the employee dutifully notifies the employer, there is no disqualifying
                  misconduct. However, when an employee is convicted of a crime, it is the
                  employee's criminal behavior that prevents him or her from returning to
                  work, and the employee is disqualified from receiving unemployment
                  benefits.
                  The district court erred
                              The district court misstated the law in its order. The district
                  court proclaimed that employee absenteeism is insufficient as a matter of
                  law to deny unemployment benefits. Implicitly, the district court
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                   concluded that absenteeism because of incarceration is not sufficiently
                   connected with employment to implicate NRS 612.385. In Bundley, this
                   court determined that employers have the initial burden of showing
                   misconduct, but a clear pattern of unauthorized absences from work
                   creates a presumption of disqualifying misconduct. 122 Nev. at 1450, 148
                   P.3d at 757. Once a pattern of unauthorized absenteeism has been
                   established, the burden shifts to the employee to rebut the presumption.
                   Id. When the misconduct alleged is an employee's absenteeism caused by
                   incarceration, we conclude that the employee can only rebut the
                   presumption by demonstrating the incarceration is not caused by criminal
                   conduct, but rather by indigence or unsupported charges.
                               Murphy argues that he dutifully notified Greystone about
                   missing work. The district court did not address the issue of dutiful
                   notification in its order. However, the district court did not err by failing
                   to do so. This argument is irrelevant in light of Murphy pleading guilty to
                   the criminal charges. The dutiful notification requirement is only relevant
                   when the employee is either not subsequently convicted on the criminal
                   charges or demonstrates that indigence caused the incarceration.
                               However, we conclude that the district court erred in
                   overturning the ESD's decision. Although Murphy stated that he could
                   not afford bail, his absence from work was directly caused by hisS criminal
                   conduct—he pleaded guilty to the charges against him. Therefore, he is
                   disqualified from receiving benefits under NRS 612.385.
                                                 CONCLUSION
                               For the foregoing reasons, we conclude that the ESD's decision
                   was not arbitrary or capricious and was supported by substantial
                   evidence. Murphy pleaded guilty to the criminal charges against him and
                   was incarcerated for a year. He was absent from work as a result of his
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                 criminal conduct. The ESD properly concluded that Murphy's situation
                 was distinguishable from Evans on the basis of criminal conduct or an
                 "element of wrongfulness." Bundley, 122 Nev. at 1446, 148 P.3d at 755.
                 Accordingly, we conclude that the district court abused its discretion in
                 granting Murphy's petition. We reverse the district court's order granting
                 the petition for judicial review.


                                                                FLA th-a-t-t-A
                                                        Hardesty


                 We concur:


                                                     C.J.
                 Parraguirre



                 Douglas




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