{
  "id": 8527066,
  "name": "IN THE MATTER OF: MERRILL F. KAHL v. SMITH PLUMBING COMPANY and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA",
  "name_abbreviation": "Kahl v. Smith Plumbing Co.",
  "decision_date": "1984-05-01",
  "docket_number": "No. 833SC493",
  "first_page": "287",
  "last_page": "290",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state_regional",
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      "year": 1973,
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      "cite": "17 N.C. App. 340",
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      "reporter": "N.C. App.",
      "case_ids": [
        8555463
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      "year": 1973,
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          "page": "343-44"
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  "last_updated": "2023-07-14T17:24:21.303361+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges WEBB and BECTON concur."
    ],
    "parties": [
      "IN THE MATTER OF: MERRILL F. KAHL v. SMITH PLUMBING COMPANY and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nAppellants assign as error the trial court\u2019s conclusion as a matter of law that the Employment Security Commission (ESC) failed to properly apply the law to the facts. Appellants contend that the facts here show, as a matter of law, \u201cmisconduct connected with work\u201d sufficient to disqualify Kahl from unemployment insurance benefits, pursuant to G.S. 96-14(2). We do not agree.\nIn its decision ESC declared that Kahl was disqualified for unemployment benefits because:\n[I]f a prohibition against moonlighting is adopted and made known to the employees, an employee\u2019s expressed intent to violate this moonlighting policy would run counter to the standards of behavior that the employer had a right to expect of the individual as an employee. In the case at hand, it is concluded that the claimant\u2019s behavior constituted an intentional and wilful disregard of the standards of behavior that his employer had the right to expect of him and therefore constituted misconduct connected with his work.\nWe note that ESC\u2019s decision here incorporates language that has been set out by this court defining \u201cmisconduct\u201d:\n[T]he term \u201cmisconduct\u201d [in connection with one\u2019s work] is limited to conduct evincing such wilful or wanton disregard of an employer\u2019s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee ... or to show an intentional and substantial disregard of the employer\u2019s interests or of the employee\u2019s duties and obligations to his employer.\nIn re Collingsworth, 17 N.C. App. 340, 343-44, 194 S.E. 2d 210, 212-13 (1973).\nESC erred in its conclusion that an employee\u2019s expressed intent to violate the moonlighting policy in the future was equivalent to intentional and willful disregard of the standards of behavior that his employer had the right to expect of him. At the time that Kahl was discharged, he had not bid on the outside jobs and thus had not exhibited conduct \u201cevincing . . . wilful or wanton disregard of his employer\u2019s interest.\u201d Id. Even if Kahl had violated a work rule, he was not, as a matter of law, disqualified from unemployment benefits. \u201cWhile the violation of a work rule may well justify the discharge of an employee, such a violation does not necessarily amount to misconduct for unemployment compensation purposes.\u201d 76 Am. Jur. 2d Unemployment Compensation \u00a7 53 (1975). Here, where there was not even a violation of a work rule, an employee\u2019s grumbling and his statement that he intended in the future to violate a work rule do not rise to the level of willful or wanton disregard of the employer\u2019s standards such as to constitute misconduct connected with work. The trial judge was therefore correct in reversing ESC\u2019s ruling that an intent to violate a work rule is equivalent to misconduct within the purview of G.S. 96-14(2) as a matter of law.\nThe trial court\u2019s order setting aside and reversing ESC\u2019s decision disqualifying Kahl from receiving unemployment benefits is\nAffirmed.\nJudges WEBB and BECTON concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Thelma M. Hill for appellant Employment Security Commission of North Carolina.",
      "Richard L. Stanley for employer-appellant Smith Plumbing Company.",
      "Richard F. Gordon for claimant-appellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: MERRILL F. KAHL v. SMITH PLUMBING COMPANY and EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA\nNo. 833SC493\n(Filed 1 May 1984)\nMaster and Servant \u00a7 108.1\u2014 unemployment compensation \u2014 intent to violate moonlighting rule \u2014 no misconduct connected with work\nAn employee\u2019s expressed intent to violate the employer\u2019s moonlighting policy in the future did not rise to the level of willful or wanton disregard of the employer\u2019s standards such as to constitute misconduct connected with his work which would disqualify the employee from receiving unemployment compensation benefits.\nAppeal by Employment Security Commission of North Carolina and employer Smith Plumbing Company from Reid, Judge. Judgment entered 2 December 1982 in Superior Court, Carteret County. Heard in the Court of Appeals 14 March 1984.\nMerrill Kahl was employed by Smith Plumbing Company as a plumbing mechanic superintendent. Kahl had worked for Smith since July of 1978, and employees of the company had been permitted to \u201cmoonlight\u201d as plumbers with the employer\u2019s knowledge and consent all during that time.\nIn May of 1982, Kahl came to Smith and told him that he was going to bid on two outside, \u201cmoonlighting\u201d jobs. Smith then called an employee meeting and announced that there would be no more moonlighting because (1) the employees\u2019 outside work was interfering with the employer\u2019s work schedule and (2) the employees might be bidding against the employer for the same jobs. The employees were told that they could finish outside jobs that they had already begun. At the time, the employees were working reduced hours because of lack of work.\nAt that time, Smith told Kahl specifically not to bid on the two jobs. Kahl then told another employee that Smith should not be able to control the outside work he performed and indicated that he intended to bid on the jobs anyway. Because of this, Smith called Kahl in and gave him the option of resigning or being fired. Kahl chose to resign. At that point, he had not bid on the outside jobs. Kahl submitted a price to a contractor a week after his \u201cresignation.\u201d\nWhen Kahl filed a claim for unemployment insurance benefits, an Employment Security Commission Adjudicator ruled that Kahl\u2019s resignation was \u201ctantamount to a discharge\u201d but that he was disqualified from receiving unemployment benefits under G.S. 96-14(2) because he was discharged for \u201cmisconduct connected with work.\u201d Kahl appealed, and an appeals referee ruled that Kahl was not disqualified from receiving unemployment benefits, because the employer had not presented evidence of \u201csuch wilful or wanton disregard of an employer\u2019s interest\u201d so as to show \u201cmisconduct connected with work.\u201d Smith then appealed to the Employment Security Commission and on 29 September 1982, the decision of the appeals referee was reversed. Kahl appealed to Superior Court for judicial review. There, the court reversed the Employment Security Commission and awarded benefits to Kahl. Smith and the Employment Security Commission appealed.\nThelma M. Hill for appellant Employment Security Commission of North Carolina.\nRichard L. Stanley for employer-appellant Smith Plumbing Company.\nRichard F. Gordon for claimant-appellee."
  },
  "file_name": "0287-01",
  "first_page_order": 319,
  "last_page_order": 322
}