No. 65681 

FILED 

MAR 3 1 2016 

K LINDEMAN 

ialatil 

CHIEF DEP ERn 

BY 

132 Nev., Advance Opinion IS 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

THE STATE OF NEVADA 

EMPLOYMENT SECURITY DIVISION; 

RENEE OLSON, IN HER CAPACITY AS 

ADMINISTRATOR OF THE 

EMPLOYMENT SECURITY DIVISION; 

AND KATIE JOHNSON, IN HER 

CAPACITY AS CHAIRPERSON OF THE 

EMPLOYMENT SECURITY DIVISION 

BOARD OF REVIEW, 

Appellants, 

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, "factbased 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 

2If we 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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