released from jail, he immediately reported to Goodwill, but was informed 

that his employment had been terminated on February 23 for a "no call no 

show" violation. 

Appellant then filed for unemployment benefits. Respondent 

Employment Security Division (ESD) denied the request, concluding that 

the "no call no show" violation constituted misconduct that disqualified 

appellant from receiving benefits. Appellant administratively appealed. 

The appeals referee concluded that appellant had admitted that he was 

guilty of criminal conduct, which resulted in his incarceration and 

inability to report for work and therefore constituted disqualifying 

misconduct. Appellant appealed again, and the Board of Review denied 

further review. Appellant then filed a petition for judicial review, which 

the district court denied, and this appeal followed. 

In reviewing an administrative decision in an unemployment 

benefits matter, this court, like the district court, determines whether the 

administrative agency acted arbitrarily or capriciously or made an error of 

law. NRS 233B.135(3); McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 

553 (1982). This court may decide pure issues of law without giving 

deference to the agency's determination, but mixed questions of law and 

fact are entitled to deference and the agency's conclusions will not be 

disturbed if they are supported by substantial evidence. See Kolnik v. 

Nev. Emp't Sec. Dep't, 112 Nev. 11, 16, 908 P.2d 726, 729 (1996); see also 

Leeson v. Basic Refractories, 101 Nev. 384, 385-86, 705 P.2d 137, 138 

(1985). 

On appeal, appellant argues that equating incarceration with 

disqualifying misconduct is an error of law and that substantial evidence 

does not support a finding of misconduct under the correct legal standard. 

Respondents argue that appellant's failure to report to work when 

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scheduled or give his employer appropriate notice of his absence, as well 

as his intentional criminal acts that resulted in his incarceration and 

inability to report for work, constituted disqualifying misconduct. 

Under NRS 612.385, if a person was discharged from work for 

misconduct, he or she is ineligible for unemployment benefits. Misconduct 

for the purposes of unemployment benefits has been defined as "a 

deliberate violation or a disregard of reasonable standards, carelessness or 

negligence showing [a] substantial disregard of [the employee's] duties" to 

the employer. Garman v. State, Emp't Sec. Dep't, 102 Nev. 563, 565, 729 

P.2d 1335, 1336 (1986) (internal quotation omitted); see also NRS 612.385 

(requiring that disqualifying misconduct be connected with the person's 

work); Kolnik, 112 Nev. at 15-16, 908 P.2d at 729 (explaining that the 

employee's conduct must have an element of wrongfulness in order to 

constitute disqualifying misconduct). 

Here, the appeals referee concluded that appellant's criminal 

conduct that resulted in his incarceration and inability to report for work 

constituted disqualifying misconduct. It is unclear from the record before 

us whether the appeals referee's finding of misconduct was based on 

appellant's inability to report for work due to his incarceration, or his 

failure to report to work. Nevertheless, in addressing a similar situation 

to the one presented here, this court held that when an employee was 

arrested for charges unrelated to work and remained in jail pending trial 

because the employee could not afford bail, such conduct did not constitute 

disqualifying misconduct when the employee had dutifully notified the 

employer of the employee's inability to appear for work. State, Emp't Sec. 

Dep't v. Evans, 111 Nev. 1118, 1119, 901 P.2d 156, 156-57 (1995). 

Furthermore, while absence without leave may be cause for termination, it 

does not necessarily constitute disqualifying misconduct for 

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, J. 

unemployment benefits purposes. Clark Cnty. Sch. Dist. v. Bundley, 122 

Nev. 1440, 1448-49, 148 P.3d 750, 756-57 (2006). In light of this authority, 

the appeals referee committed legal error in finding misconduct solely on 

the basis of appellant's criminal conduct, which led to his failure to report 

for work. Among other things, the appeals referee failed to evaluate 

whether appellant's attempt to notify his employer of his potential absence 

was sufficient under the circumstances presented or what, if any, 

relevance his subsequent lack of communication with his employer had in 

determining whether appellant had committed disqualifying misconduct, 

given that appellant was immediately terminated on February 23 after he 

failed to report to work. See Bundley, 122 Nev. at 1446, 148 P.3d at 755 

("Generally, then, an employee's absence will constitute misconduct for 

unemployment compensation purposes only if the circumstances indicate 

that the absence was taken in willful violation or disregard of a reasonable 

employment policy (i.e., was unjustified and, if appropriate, unapproved), 

or lacked the appropriate accompanying notice." (Citations omitted)). 

Accordingly, we reverse the district court's order denying 

appellant's petition for judicial review and direct the district court to 

remand the matter to the appeals referee for further proceedings 

consistent with this order. 

It is so ORDERED. 

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Hardesty 

 d CI mom T . 

Parraguirre "I'' Cherry 

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cc: Hon. Kenneth C. Cory, District Judge 

William F. Buchanan, Settlement Judge 

Nevada Legal Services/Las Vegas 

State of Nevada/DETR 

Eighth District Court Clerk 

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