Introduction

Each year, the Idaho Industrial Commission (Commission) issues more than 300 unemployment compensation (UC) decisions. As one of the deputy attorneys general assigned to the Idaho Department of Labor (IDOL), I review nearly all Commission decisions. My aim with this article is to draw upon that experience and provide insight to practitioners by (a) sharing a few procedural pitfalls in appeals taken under the Employment Security Law (ESL), I.C. §§ 72-1301 et seq., and (b) examining how the Commission typically reviews workplace misconduct cases—which comprise the bulk of contested UC appeals.

Understanding UC Appeals

Once a claimant files for unemployment benefits, which is typically done through IDOL’s internet unemployment system, a determination of eligibility is made based upon the claimant’s answers to various questions related to work history, earnings, and availability for work. After that, an audit of varying degrees of scrutiny usually occurs, which may result in a subsequent determination of eligibility that differs from the first. Claimants and employers have a right to appeal from these determinations by filing an appeal within fourteen days of the date of the determination.[1]

There are three levels of appeal after IDOL makes a determination of eligibility for unemployment benefits: (1) a de novo appeal to IDOL’s Appeals Bureau, (2) a de novo appeal to the Commission, and, finally, (3) an appeal to the Idaho Supreme Court where the Court will defer to the Commission’s factual findings.[2] Appeals to the Commission must be filed within fourteen days[3] and appeals to the Idaho Supreme Court within 42 days.[4]

Appeals Bureau hearings are conducted telephonically by IDOL appeals examiners. Testimony is taken under oath and subject to cross-examination. Relevant written documents may also be submitted, but it is imperative that all documents be provided in advance of the hearing, with copies furnished to the opposing party. Appeals examiners commonly refuse to consider documents submitted without prior notice to the other side. The best practice is to submit all documentary evidence well before the hearing so it can be included in the 50-to-100-page exhibit admitted at the beginning of the hearing.

Notably, appeals examiners have an affirmative duty to develop relevant facts and do not sit idly by during hearings.^[5] While evidence may be considered that does not strictly comply with the rules of evidence, hearsay often proves unhelpful: first-hand testimony substantiating misconduct is generally required. For example, in a recent case, the employer’s human resources officer testified about accounts of a confrontation involving the claimant. But because she had no first-hand knowledge of the events, her testimony was given no weight.^[6]

Parties must call into the telephonic hearing at the designated time. Missing the hearing by just a few minutes may result in dismissal of the appeal or a decision based solely on the evidence presented by the appearing party. When a dismissal occurs in these circumstances, the defaulted party may within 10 days request that the hearing be re-opened,^[7] but that request will not be granted unless “good cause” is clearly shown.

The notice of appeal to the Commission can be as simple as an email stating, “I appeal.” After the filing of a notice of appeal, an employer that is a business entity must be represented by an attorney in order to participate.^[8] If a party wishes to submit additional evidence or file a written brief, it must make a request to do so within seven days of the date the record is mailed.^[9] After the record is transmitted, absent a motion for briefing, the Commission will issue a written decision without prompting by any party. There is no oral argument.

A word of caution about Commission appeals: the department’s Appeals Bureau hearing typically constitutes the entirety of the record for the Commission’s “de novo” review. Don’t expect a second bite at the apple. Although the ESL and the Commission’s rules of procedure allow the Commission to take additional evidence or hold a new hearing,^[10] it rarely does so. The Commission takes the position that allowing additional evidence and holding a new hearing are “extraordinary measures” reserved for those cases when due process or other interests of justice demand no less. A practitioner is apt to have better luck obtaining a remand to the Appeals Bureau than a new evidentiary hearing before the Commission.^[11]

The Commission applies the uncontradicted testimony rule. Relying upon the Idaho Supreme Court’s 1979 decision in Dinneen v. Finch,[12] Commission decisions explain that the finder of fact must accept as true the positive, uncontradicted testimony of credible witnesses unless their testimony is inherently improbable. Testimony is “inherently improbable” when there is a physical impossibility of the evidence being true or when the falsity is apparent without resort to any inferences or deductions. Because uncontradicted accounts are accepted as factual, it is difficult to overcome the uncontradicted testimony rule.

The pleading requirements in appeals to the Idaho Supreme Court are far more rigorous than those in the first and second level appeals, particularly with respect to the required contents of notices of appeal and appellate briefs.[13] A significant number of pro se appellants have their appeals dismissed for failing to comply with the Idaho Appellate Rules. During 2024 and 2025, 11 pro se appeals were dismissed by the Idaho Supreme Court for failing to comply with the Idaho Appellate Rules while only two pro se appeals were decided on the merits.[14]

Employee Misconduct

In employee misconduct cases, the burden of proving misconduct “falls strictly” on the employer.[15] Commission decisions explain that what constitutes “cause” in the mind of an employer for dismissing an employee is not necessarily the legal equivalent of “misconduct” under the ESL. The two issues are separate and distinct.

Commission decisions observe, consistent with case law, that misconduct under the ESL occurs when the employee (1) willfully and intentionally disregards the employer’s interest, (2) willfully and deliberately violates the employer’s reasonable rules, or (3) disregards a standard of behavior the employer had a right to expect of its employees.[16]

Against Employer’s Interest

A Commission finding of misconduct under the “employer’s interest” prong is relatively rare. Conduct that disregards an employer’s interest, e.g., theft or the disclosure of trade secrets to a competitor, can satisfy this prong, but the Commission applies a heightened intent standard. The Commission requires proof that the claimant displayed a malicious or consciously deliberate disregard of employer’s interest—a willful or intentional disregard of that interest. Because of these intent requirements, the Commission often concludes that the evidence presented in support of an “employer’s interest” claim is insufficient.

Notably, the Idaho Supreme Court has never applied a malice standard when analyzing this prong. To the contrary, it has said the term “willful” does not require proof that the claimant acted maliciously or with an “evil mind.”[17]

Violation of Employer’s Rules

The intent required under the “rules” prong is also a tall hurdle because the Commission requires a showing that the claimant deliberately violated a known rule and intentionally violated the spirit of the rule. To have any realistic chance of meeting this prong, the employer must include in the record the written policy at issue. The Commission has explained that without copies in the record of any written provision the claimant has allegedly violated, an employer cannot meet its burden of demonstrating misconduct under this prong.

The difficulty in proving the necessary intent under the “rules” prong is illustrated by a recent case involving an employer’s attendance policy. The employer followed that policy and issued a final warning to an employee with a history of tardiness. When the employee was tardy four times in the month following the final warning, the employer terminated her employment. Although the employee had signed an acknowledgement of the written attendance policy, and the policy itself was admitted into the record, the Commission declined to find misconduct under the “rules” prong. After recounting the personal reasons offered by the claimant for her tardiness, including her need for assistance getting ready for work in the morning due to a medical condition, the Commission concluded that the employer had not met its burden. It explained that the claimant did not appear to have been intentionally disregarding the policy when she failed to arrive at work on time on the days in question.

If a written rule recites a general norm of behavior—such as a rule prohibiting “racist or sexually offensive remarks or jokes”—the Commission typically refuses to evaluate offending conduct under the “rules” prong, reasoning that the rule appears to be a “standard of behavior” rather than the kind of rule the Idaho Supreme Court has applied to the “rules” prong of the misconduct definition.

The main takeaway is that a mere violation of a written rule is usually not enough. The Commission requires evidence that the claimant “deliberately and intentionally” violated the rule at issue—which is a relatively demanding standard.

Violation of Expected Standards of Behavior

Because of the stringent intent requirements under the first two prongs, most misconduct cases hinge on whether the employer can establish misconduct under the “standards of behavior” prong. Unlike the “employer’s interest” and “rules” prongs, a claimant’s subjective intent is irrelevant under the “standards of behavior” prong. The Commission explains that the employer need not demonstrate that claimant’s conduct was willful, intentional, or deliberate.

The Commission applies Idaho Supreme Court precedents under this test, which require a showing that: (1) the employee’s conduct violated an expectation the employer “subjectively expected from the employee,” and (2) the employer’s expectation was “objectively reasonable.”^[18] An expectation is objectively reasonable if it is either communicated to the employee or one that flows naturally from the employment relationship.^[19] Expectations “flow naturally” when they are common among employers generally or within a particular enterprise.^[20]

Even if the “standards of behavior” elements are established, a claimant may be eligible for benefits if it is shown that the employer’s expectations could not be met because the claimant was simply inept or “merely inefficient” at the job.^[21]

2025 Legislative Changes

As mentioned above, the three-pronged misconduct definition was created by court decision. The term had not been defined in the ESL. The Court’s misconduct definition later was “codified” in IDOL’s administrative rules. The IDAPA rule defined the first two prongs as follows:

a. Disregard of Employer’s Interest. A willful, intentional disregard of the employer’s interest.

b. Violation of Reasonable Rules. A deliberate violation of the employer’s reasonable rules.[22]

In 2025, the Idaho Legislature repealed the IDAPA definition of misconduct and added to the ESL a definition for “workplace misconduct.”[23] Under the new definition, the first two prongs of misconduct only require that the employee’s conduct be “willful.” The 2025 amendments eliminate the “intentional disregard” and “deliberate violation” language and define the first two prongs as simply conduct that “willfully disregards the employer’s interest [or] willfully violates the employer’s reasonable rules.”

A strong argument can be made that the Legislature intended to change the intent required to prove the first two prongs to only a “willful” intent. This conclusion is buttressed by the fact that the Legislature did not change the wording of the third prong from what had been recited in prior case law and the IDAPA rule.

Equally important, the 2025 Legislature added a definition for “willful” to the ESL:

      (1) As used in this chapter, “willful” or “willfully” means the making of a statement where:

(a) The person knew the statement to be false or acted with deliberate ignorance of, or reckless disregard for, the truth of the matter; or

(b) The person failed to disclose a material fact that the person knew or should have known was required to be disclosed.

      (2) To be willful, an act must be intentional, not accidental. No proof of specific intent to defraud or violate the law is required.[24]

Subsection (2) of this definition is not limited to “the  making of a statement” so it would appear to apply to any “act,” including those that might constitute “workplace misconduct.” The definition in subsection (2) is consistent with the Idaho Code’s definition of “willful” in the area of criminal law:

The word “wilfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.[25]

In sum, by not carrying forward the “intentional disregard” and “deliberate violation” language of the IDAPA rule, arguably the Idaho Legislature intended to remove those requirements from the intent required under the first two prongs of misconduct.

Patterns of Discipline Matter

When the Commission applies the three misconduct prongs, the patterns of employers’ discipline matter. This is illustrated by a case where the employer disciplined an employee with a performance improvement plan (PIP) and the Commission held that misconduct could not be based upon the conduct addressed in the PIP. The Commission observed that employers cannot use a form of discipline short of discharge for a certain behavior, and then later discharge the worker for the past behavior unless the employer can demonstrate a subsequent occurrence of the same behavior.[26]

Stated another way, if an employer testifies that a specific incident precipitated the decision to discharge, there is a good chance the Commission will evaluate misconduct by focusing solely upon that event because it was the “last straw”—even though the employee failed to meet the employer’s expectations on numerous prior occasions and was warned that if the conduct continued, termination would result.

In one case, the triggering event for an employee’s termination was her failure to properly calendar a client’s appointment. The Commission wrote that the final basis for the discharge must support any finding of misconduct under the ESL and that it is not enough for the employer to simply present an exhaustive list of every alleged misbehavior or wrongdoing committed by an employee during her employment. In this case, ignoring a long pattern of claimant’s failure to meet performance expectations, the Commission found that claimant was eligible for unemployment benefits because the event that prompted the employer’s decision to discharge—claimant’s mis-calendaring of an appointment—was merely “an oversight or an inadvertency.”[27]

Relying upon case law from Pennsylvania,[28] the Commission also applies the remoteness doctrine to UC cases and will disregard evidence of misconduct when it is too remote from the date of discharge. Under this doctrine, an “unexplained, substantial delay” between the claimant’s misconduct and the employer’s termination of the claimant will preclude an employer from seeking a denial of benefits based on allegations of misconduct. However, if an employer provides a reasonable explanation to justify the delay—such as an administrative review process or a lengthy investigation—the Commission may choose not to apply the remoteness doctrine.

Another thread in Commission decisions is the notion that the claimant must have received fair warning that his conduct could result in discharge. There exists no such requirement in the law, but it is something frequently mentioned by the Commission when deciding close cases.

Conclusion

Several points can be gleaned from Commission decisions. The first level UC appeal to the Appeals Bureau is not an appeal. It is an evidentiary hearing. At the second level, although the Commission hears the appeal de novo, the whole ball game is played in the Appeals Bureau because the Commission is unlikely to grant a request to submit additional evidence or hold a new hearing.

Also, to establish misconduct under the “employer’s interest” and “rules” prongs, a heightened showing of intentional or deliberate conduct is needed. Because these are tough rows to hoe, most of the Commission appeals are decided under the “standards of behavior” prong where the claimant’s intent is irrelevant. Also, a practitioner is well-advised to remember that the Commission will look at an employer’s pattern of discipline and may not consider misconduct evidence that occurred before the employer’s penultimate discipline or that is temporally remote from the date of discharge.

Last, it remains to be seen whether the 2025 amendments to the ESL will lessen the intent needed under the first two prongs of misconduct.

Douglas A. Werth has been with the Idaho Attorney General’s Office since 2015 and is assigned as Lead Deputy Attorney General to the Idaho Department of Labor and the Idaho Human Rights Commission. Before that, he practiced for two decades in Blaine County. He graduated from law school at the University of Idaho and obtained a Master of Laws degree from Georgetown University. Doug has two “boys” (20 and 22) and two dogs (three and eight) and enjoys many of the outdoor activities that Idaho offers. Mr. Werth’s analyses and opinions stated in this article are his own and do not necessarily reflect those of the Idaho Attorney General’s Office or his clients.

[1] I.C. § 72-1368(3)(c).

[2] Appeals from Commission UC decisions are heard directly by the Idaho Supreme Court. Idaho Const., art. V, § 9. Most are pro se, have small appellate records, and involve a body of law that is discrete and manageable. Because of that, UC appeals present a great opportunity for pro bono attorneys who want to gain appellate experience before the Idaho Supreme Court.

[3] I.C. § 72-1368(6).

[4] I.A.R. 14(b). The eligibility conditions for receipt of unemployment benefits are found in I.C. § 72-1366.

[5] IDAPA 09.01.01.045.11 (2022). See also, A Guide to Unemployment Insurance Benefit Appeals—Principles and Procedures (1970), p. 8, Appendix B to ET Handbook No. 382, 3rd Ed. (March 2011) (available at: https://oui.doleta.gov/dmstree/pl/yellow_book.pdf). According to the United States Department of Labor (USDOL), this guide is not binding on states, but, rather, sets forth “best practices.” See informal staff-level opinion in email dated March 24, 2025 from Daniel Hays, Director, Division of Legislation, USDOL Employment & Training Administration, to Douglas A. Werth, Lead Deputy Attorney General, Idaho Attorney General’s Office.

[6] Due to confidentiality requirements relating to employment security information, Commission decisions are unpublished and not available to the public.  I.C. §§ 72-1342(1), 72-1374, and 74-106(7). Thus, this article does not supply citations to Commission decisions because to do so would require disclosure of employment security information.

[7] I.C. § 72-1368(6).

[8] Industrial Commission Rules of Appellate Practice and Procedure Under the Employment Security Law (RAPP), Rule 4(C). The Commission’s rules of procedure in UC cases are not found in IDAPA. Rather, they are in the RAPP available online here: https://iic.idaho.gov/wp-content/uploads/2025/07/FINAL-RAPP-July-9-2025.pdf.

[9] RAPP, Rules 5(A) and 7(A).

[10] I.C. § 72-1368(7); RAPP, Rule 7.

[11] RAPP, Rule 10.

[12] Dinneen v. Finch, 100 Idaho 620, 626-627, 603 P.2d 575, 581-582 (1979).

[13] See I.A.R. 17 and 35.

[14] Castell v. Money Metals Exchange, LLC, 174 Idaho 843, 560 P.3d 990 (2024); Hennig v. Money Metals Exchange, LLC, 174 Idaho 143, 551 P.3d 1237 (2024).

[15] Adams v. Aspen Water, Inc., 150 Idaho 408, 413, 247 P.3d 635, 640 (2011).

[16] Accord, Kivalu v. Life Care Centers of America, 142 Idaho 262, 265, 127 P.3d 165, 167 (2005). This three-pronged framework was adopted by the Idaho Supreme Court in Johns v. S.H. Kress and Co., 78 Idaho 544, 548, 307 P.2d 217, 219 (1957).

[17] Christy v. Grasmick Produce, 162 Idaho 199, 202, 395 P.3d 819, 822 (2017) (quoting McNulty v. Sinclair Oil Corp., 152 Idaho 582, 586-87, 272 P.3d 554, 558-59 (2012)).

[18] Shumway v. Evans Chiropractic, Inc., 173 Idaho 300, 305, 541 P.3d 58, 63 (2023).

[19] Shumway, 173 Idaho at 306, 541 P.3d at 64.

[20] Id. (quoting Adams, supra, 150 Idaho at 413, 247 P.3d at 640).

[21] I.C. § 72-1330A(4).

[22] IDAPA 09.01.30.275.02.a-b (1999).

[23] I.C. § 72-1330A (added by 2025 Idaho Sess. Laws, ch. 29, § 17).

[24] I.C. § [72-1330B] 72-1330A (added by 2025 Idaho Sess. Laws, Ch. 28, § 2).

[25] I.C. § 18-101(1).

[26] But see Oxley v. Medicine Rock Specialties, Inc., 139 Idaho 476, 80 P.3d 1077 (2003); Harper v. Idaho Dep’t of Lab., 161 Idaho 114, 116, 384 P.3d 361, 363 (2016) (there is no requirement that there be a precipitating act of misconduct immediately prior to the termination of employment). See also Wulff v. Sun Valley Co., 127 Idaho 71, 75–76, 896 P.2d 979, 983–84 (1995) (employer’s “allegations of misconduct must be analyzed individually and as a whole”).

[27] I.C. § 72-1330A(4) (“Mere inefficiency, unsatisfactory conduct, [and] inadvertencies . . . shall not be considered misconduct connected with employment.”).

[28] Downey v. Unemployment Compensation Bd. of Review, 913 A.2d 351, 354 (Pa. Commw. Ct. 2006); Raimondi v. Unemployment Compensation Bd. of Review, 863 A.2d 1242, 1245-1247 (Pa. Commw. Ct. 2004).