2004-633, APPEAL OF SIMONE RIENDEAU

disciplinary issues. customers at the cash register. She was a good employee with no warnings or tim e customer service associate. Her primary responsibility was assisting Riendeau was employed at a Cumberland Farms store in Nashua as a part - The record supports the following facts. Beginning in November 2002,

with her work. See RSA 282 - A:32, I(b) (1999). We affirm. unemployment benefits because she was discharged for misconduct connected Hampshire Department of Employment Security (DES) finding her ineligible for appeal tribunal (tribunal), as affirmed by the appellate board, of the New DUGGAN, J. The petitioner, Simone Riendeau, appeals a decision of the

Se curity. Randall, of Concord, by brief, for the New Hampshire Department of Employment general, on the brief, and Stephen G. LaBonte, attorney, orally), and Michael R. Kelly A. Ayotte, attorney general (Mary E. Schwarzer, assistant attorney

the brief and orally), for the petitioner. New Hampshire Legal Assistance, of Claremont (Jonathan P. Baird on

(New Hampshire Department of Employment Security)

No. 2004 - 633 Department of Em ployment Security

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

evidence on questions of fact. RSA p. 2 282 - A:67, IV, V (1999); see Appeal of will not substitute our judgment for its judgment as to the weight of the In reviewing a decision of the tribunal we are confined to the record and

Riendeau appealed to this court. decision of the tribunal. After a motion for reconsideration wa s denied, board reviewed the record, heard argument from the parties and affirmed the reopen the case. Riendeau then appealed to the appellate board. The appellate Thereafter, Riendeau unsuccessfully req uested that the commissioner of DES discharged for misconduct connected with her work. See RSA p. 2 282 - A:32, I(b). hearing, the tribunal reversed based upon its finding that Riendeau was employer appealed for de novo review by the tribunal. After an evidentiary Riendeau applied for and was awarded unemployment benefits. The

next day, Riendeau was dismissed from her job. products to a person under the age of eighteen. See RSA 1 p. 2 26 - K:4 (2005). The operation entered th e store and gave Riendeau a summons for selling tobacco Ten minutes after the sale, a Nashua police officer involved in a sting

that the customer appeared to be age thirty or older. the customer for identification and pushed the clear button twice, affirming Riendeau rang up the sale on the cash register. I n doing so, she did not ask but “didn’t really have time to really think [whether] she [was] under 30 or not.” girl off to the side who wanted to buy cigarettes. She looked at the young girl particularly busy. There was a line of customers in front of her and a young the cash register while another employee was on break. The store was On October p. 2 21, 2003, in the early evening hours, Riendeau was alone at

button twice to override the program and complete the sale. without verifying the customer’s age. The employee must p ush the “clear” affirm that the person appears to be thirty or older before completing the sale or any other age - restricted product. The program requires the employee to programmed to put up a “red flag” w hen an employee scans a pack of cigarettes underage sales of tobacco products. In addition, the cash registers are sales of tobacco products and attended and passed a course on preventing w as required to watch a twenty - minute training video on preventing underage products under age eighteen (18) will result in immediate dismissal.” Riendeau law and “[a] violation of the procedures that results in the sale of tobacco handbook also stated that the sale of cigarettes to minors was against State required to review and sign during her first week of employment. The was given an employee handbook setting forth this policy, which she was purchasing an age - restricted product such as tobacco or alcohol. Riendeau customer who ap pears to be under the age of thirty for identification when Cumberland Farms has a company policy that employees must ask any p. 3 3

that was the basis of the tri bunal’s finding of misconduct. age of the customer, and not the completion of the sale of cigarettes to a minor, was the deliberate violation of the policy that required Riendeau to verify the thirty, then h andling the customer’s payment” was deliberate. Accordingly, it then overriding the computer on its question of the sale to someone under age that “the [threefold] act of not looking at the customer before the purchase, of all customers who appeared to be under thirty. The tribunal further found Riendeau failed to follow the company policy that required her to verify the age basis for the tribunal’s finding of misconduct. The tribunal found that The completion of the sale of cigarettes to a minor, however, was not the

deliberate, and thu s did not constitute misconduct. cigarettes to a minor was an isolated mistake of poor judgment that was not appeal tribunal’s finding of misconduct. She further contends that her sale of fact that an underage sale of a tobacco product happened is the crux” of the discharged for misconduct under the second prong. She contends that “the Riendeau argues that the tribunal erred in finding that she was

interests of the employer. Id. company rule that is reasonably designed to protect the legitimate business be sufficient to support a finding of misconduct if it is a deliberate violat ion of a substantial disregard. Id. However, under the second prong, a single act may to manifest wrongful intent or evil design or to show intentional and misconduct. Id. The negligence need not be of s uch a degree or recurrence as of misconduct, but recurring careless or negligent acts are enough to constitute inadvertent instances of unsatisfactory conduct are not sufficient for a finding Commission, 1 p. 3 30 N.H. 659, 664 (1988). Under the first prong, isolated or ‘misconduct’ applicable to RSA 282 - A:32, I(b).” Appeal of N.H. Sweepstakes Hampshire has used a less stringent two - pronged modified definition of willful and wanton disregard of an employer’s interests. “Instead, New We have rejected a definition of misconduct that requires pro of of a

of “misconduct connected with his work.” RSA 282 - A: p. 3 32, I(b). benefits are to be paid, however, to an employee who is terminated as a result their own. Appeal of Lakevi ew NeuroRehabilitation Ctr., 150 N.H. at 208. No upon benefits being paid to those who become unemployed through no fault of New Hampshire’s unemployment compensation system is predicated

NeuroRehabilitation Ctr., 150 N.H. at 208. evidence presente d. See RSA 282 - A:67, V; Appeal of Lakeview unauthorized, affected by an error of law, or clearly erroneous in view of all the the decision of the tribunal unless its findings or conclusions are Lakeview NeuroRehabilitation Ctr., 150 N.H. 205, 208 (200 p. 3 3). We will uphold p. 4 4

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,

N.H. at 66 p. 4 4. interests of the employer. See Appeal of N.H. Sweepstakes Commission, 130 violated a company rule reasonably designed to protect the legitimate business record thus supports the tribunal’s conclusion that Riendeau deliberately monetary fine, damage to its reputation and the risk of losing its license. The employee, and the employer commits a civil infraction which leads to a occur, the employer is harmed because a violation is committed by the designed to prevent underage sales of tobacco and that, when such sales more than ‘accidental.’” Fina lly, the tribunal considered that the policy was decision of [Riendeau] to override the computer cash register was certainly employees of the policy. Indeed, as the appellate board recognized, “The training on the policy and the cash register was programmed to remind appear under the age of thirty when purchasing tobacco. Riendeau rec eived Cumberland Farms has a policy of requiring identification from customers who Moreover, the record in this case amply supports the tribunal’s decision.