Whitmer v. Director, Department of Workforce Services, 2017 Ark. App. 367

Tayia Whitmer worked as an accounts-payable clerk for Systems Contracting beginning August 26, 2015.
She was arrested shortly before midnight and was incarcerated, causing her to miss her November 10, 2016 shift and be unable to call her employer before the shift began.
Whitmer used her single jail phone call to contact her mother to arrange bail and check on her children; she testified she could not call her employer herself from jail.
Systems Contracting had no written attendance policy; employees were told to call before a shift if absent. Whitmer had no prior attendance write-ups.
The employer fired Whitmer for misconduct connected with the work and the Department of Workforce Services denied unemployment benefits; the Tribunal and the Arkansas Board of Review affirmed the denial.
The Court of Appeals reviewed whether Whitmer’s single, involuntary absence and failure to notify constituted misconduct (willful disregard) sufficient to deny benefits and reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Whitmer was discharged for misconduct connected with work	Whitmer: one involuntary absence while incarcerated, used available call for bail/children, no willful disregard or intent to harm employer	Employer: failure to notify before shift and being arrested were within Whitmer’s control; constituted misconduct warranting disqualification	Court: Single incident without a written policy and without intent does not show willful disregard; benefits should be awarded
Burden of proof for misconduct	Whitmer: employer must prove misconduct by preponderance	Employer: asserted facts supported misconduct finding	Court: employer failed to meet burden given lack of prior issues and inability to notify from jail
Effect of no written attendance policy	Whitmer: absence of a written policy requires evaluating intent and reasonableness of conduct	Employer: general instruction to call suffices to show rule/expectation	Court: without a written policy, misconduct must show willful disregard; not met here
Role of credibility and appellate review	Whitmer: factual disputes should not override legal standard that single accidental incident isn’t misconduct	Employer: Tribunal/Board credibility findings should be upheld	Held: appellate court defers to factfinder but must ensure legal standard applied; here substantial evidence did not support misconduct finding

Nibco v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981) (defines misconduct to exclude ordinary negligence and good-faith errors)
Clark v. Director, 83 Ark. App. 308, 126 S.W.3d 728 (2003) (misconduct requires an element of intent; question of fact for the Board)