Board of Review Decision 0083 3883 70

The claimant, a night auditor for a hotel, was discharged for sleeping while on duty. It was captured on video surveillance, and she presented no mitigating circumstances. She is ineligible for benefits due to deliberate misconduct in wilful disregard of the employer’s interest pursuant to G.L. c. 151A, § 25(e)(2).

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Issue ID: 0083 3883 70

Board of Review Decision

Introduction and Procedural History of this Appeal 

The claimant appeals a decision by a review examiner of the Department of Unemployment Assistance (DUA) to deny benefits. Benefits were denied on the grounds that the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest pursuant to G.L. c. 151A, § 25(e)(2). 

The claimant had filed a claim for unemployment benefits, effective July 28, 2024, which was denied in a determination issued by the agency on September 12, 2024. The claimant appealed to the DUA Hearings Department. Following a hearing on the merits, the review examiner affirmed the agency’s initial determination in a decision rendered on October 31, 2024. The claimant sought review by the Board, which affirmed, and the claimant appealed to the District Court, pursuant to G.L. c. 151A, § 42.

On May 8, 2025, the District Court ordered the Board to obtain further evidence. Consistent with this order, we remanded the case to the review examiner to obtain additional evidence concerning video surveillance footage and the claimant’s state of mind when she was found sleeping at work. The claimant and the employer attended the remand hearing. Thereafter, the review examiner issued his consolidated findings of fact.

The issue before the Board is whether the review examiner’s decision, which concluded that the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest when she was observed sleeping during her shift while at work, is supported by substantial and credible evidence and is free from error of law.

After reviewing the entire record, including the recorded testimony and evidence from the hearing, the review examiner’s decision, the claimant’s appeal, the District Court’s Order, and the consolidated findings of fact, we affirm the review examiner’s decision.

Findings of Fact

The review examiner’s consolidated findings of fact and credibility assessment, which were issued following the District Court remand, are set forth below in their entirety:

1. From March 12, 2022 until August 2, 2024, the claimant worked as a full-time (40 hours per week) night auditor for the employer, a hotel. 
2. The claimant worked at the employer’s front desk during the night shift, from 11 p.m. until 7:30 a.m. The claimant was responsible for answering phone calls and greeting guests. 
3. The employer maintained a policy against sleeping at work, contained within its associate handbook, to ensure that its employees are working during the shifts. The policy read, in relevant part, “[…] what is outlined here is a list of common-sense infractions that could result in discipline, up to and including immediate termination of employment. […] Examples of inappropriate conduct include but not limited to the following: […] Sleeping while on duty.” 
4. On March 13, 2022, the claimant signed an acknowledgment that she received and read the employer’s associate handbook.
5. The claimant was aware that the employer expected her to remain awake during her shifts and to refrain from sleeping while on the clock. 
6. The employer provided the claimant with a 30-minute unpaid meal break per shift, as well as two paid 15-minute breaks per shift.
7. The employer maintained a meal period policy and a rest break policy, as part of its human resources policies and procedures. These policies are not part of the employer’s associate handbook. The meal period policy read, in relevant part, “Hourly associates are required to punch out or [sic] and punch back in after taking their 30 minute unpaid meal period. […] Massachusetts employers must provide a thirty minute unpaid meal period after six hours of working. An associate must be free to leave the workplace during the meal period, if they cannot leave then they must be paid for that time. […] Failure of an associate to adhere to the time clock procedures regarding the meal period policy may result in disciplinary action leading up to and or including termination.” The rest break policy read, in relevant part, “Hourly associates are permitted a 15-minute rest break for each four hours of work. Hourly associates on rest breaks are not required to clock in and clock out because this time is considered “time worked” and is compensable. […] Rest break(s) may not be used to account for an associate’s late arrival or early departure or to cover time off for other purposes—for example, rest breaks may not be accumulated to extend or substitute for an unpaid meal period, and rest breaks may not be combined to allow for one half-hour-long rest break. […] Failure of an associate to adhere to the company’s rest break policy may result in disciplinary action leading up to and or including termination.”
8. The employer did not provide the claimant with a copy of its meal period or rest break policies.
9. The claimant’s unpaid meal breaks and her paid rest breaks were not scheduled. As long as the front desk remained covered, the employer did not provide the claimant with a specific time for her breaks.
10. Throughout her employment, the claimant, who was never told that she could not do so, regularly combined her meal break with her rest breaks and regularly took an entire hour off during her shifts. 
11. The claimant clocked in and out of work at the employer’s back office (the office). The claimant was aware that she was expected to clock out during her unpaid meal breaks.
12. The claimant most recently worked from 11 p.m. until 6 a.m. Her schedule was adjusted so that she could take her daughter to school.
13. In August 2024, the claimant was not attending school. 
14. The claimant was scheduled to work the overnight shift beginning at 11 p.m. on August 1, 2024, until 6 a.m. on August 2, 2024. During this shift, the claimant was scheduled to work at the front desk with the employer’s front desk agent (the agent).
15. On August 1, 2024, the claimant clocked into work at 10:56 p.m.
16. On August 2, 2024, beginning at 12:46 a.m., the claimant was sitting on a chair in the office, with her body leaning back, covered with a blanket, and with her feet resting on an ottoman while scrolling on her cellphone. The claimant remained in this position until approximately 1:12 a.m., when she repositioned herself to answer the employer’s phone, located at the desk directly adjacent to her. Between 1:13 a.m. and 1:14 a.m., the claimant then took off her shoes, got up from her chair, wrapped the blanket around her entire body, sat back down, rested her feet on the ottoman, and continued scrolling on her cellphone.
17. On August 2, 2024, between 1:16 a.m. and 1:17 a.m., the claimant placed her cellphone on the desk, again got up from her chair, wrapped the blanket around her body, sat back down on the chair, leaned back, rested her feet on the ottoman, and covered her face with the blanket. The claimant repositioned herself at 1:21 a.m., again covered her face with the blanket, and chose to go to sleep. At 1:41 a.m., the agent entered the office and exchanged words with the claimant. Approximately 20 seconds later, the agent left the office, and the claimant again covered her face with the blanket. The agent entered the office two more times (at 1:45 a.m. and at 1:48 a.m.) and briefly exchanged some words with the claimant over a matter of seconds. As soon as the agent left the office each time, the claimant again covered her head with the blanket and went back to sleep. 
18. After the agent left the office at 1:48 a.m., the claimant remained sleeping with her head under the blanket until 2:28 a.m. At that time, she uncovered her face, briefly picked up her cellphone, before proceeding to cover her face again and remained covered until at least 2:33 a.m.
19. On August 2, 2024, the claimant chose to go to sleep despite being aware that she was still on the clock. As she slept, the claimant was not on her meal break period.
20. The claimant was not doing any homework while in the office. 
21. The office had a video surveillance camera directly recording the claimant’s actions on August 2, 2024. The camera is activated by motion sensors and only records periods of time when there is motion in the office. If there is no motion in the office, the camera stops recording.
22. On August 2, 2024, the claimant clocked out of work for her meal break period at 3:38 a.m. and clocked back in at 4:09 a.m.
23. The claimant did not clock out and back into work between 3:38 a.m. and 4:09 a.m. to make up for time that she had been on break earlier that day.
24. After an alarm went off in the hotel on August 2, 2024, the employer’s regional director of operations (the director) reviewed the employer’s surveillance video footage and saw the claimant resting in the office chair and sleeping while covered with a blanket during her shift. 
25. On August 2, 2024, the director suspended the claimant pending a human resources investigation. During the investigation, the employer’s director of human resources (the HR director) observed the video. 
26. On August 7, 2024, the employer’s director of operations spoke with the claimant and discharged her from her employment effective immediately for sleeping during her shift on August 2, 2024. Upon being told by the director that she had been observed sleeping on the employer’s surveillance camera, the claimant did not provide an explanation or an excuse for her actions.
27. The claimant filed a claim for unemployment benefits effective July 28, 2024.
28. After filing for unemployment benefits, the claimant completed a questionnaire for the Department of Unemployment Assistance (DUA). In response to a question asking her, “What did you do that disobeyed (violated) that rule?,” the claimant wrote, “Sitting in back office\sleeping.” The claimant was further asked, “Did you disobey (violate) that rule in the way the employer says you did?” The claimant answered, “Yes,” and in a follow-up question asking her, “What did you do?,” she answered, “Sitting in back office\sleeping.” The claimant was then asked, “Why did you do that?” The claimant wrote, in relevant part, “I was tired from the previous night because I worked nonstop with no break.” At no time in the questionnaire did the claimant mention that she had been doing homework at work on August 2, 2024 or that she had remained awake during her entire shift.

Credibility Assessment:

During the second remand hearing, the HR director provided a copy of the employer’s meal period and rest breaks policies. The rest break policy, in particular, prohibits employees from combining their meal period and rest breaks. The HR director, who testified that these policies are not part of the employer’s associate handbook, contended that the policies would have been reviewed with the claimant. However, the HR director was unaware of when or who reviewed the policies with the claimant and did not have an acknowledgment indicating that the claimant had reviewed them. The claimant, on the other hand, testified that she had never been made aware of these policies, and because she had never been told that she could not do so, regularly combined her meal break with her rest breaks and regularly took an entire hour off during her shifts. It is therefore concluded that the claimant was unaware that she could not combine her meal and rest breaks.

During the initial hearing that was held on October 30, 2024, the HR director testified that he observed the August 2, 2024 video footage and saw that the claimant remained in the chair for over 2 hours, and over an hour with her head covered by a blanket. Upon review of the relevant video footage however, that testimony was somewhat misleading. The video submitted by the employer is 3 minutes and 38 seconds in length, despite covering a period beginning at 12:46 a.m. and ending on 2:33 a.m. on August 2, 2024. Given the length of the footage, it is impossible that the HR director saw the claimant in the chair for over 2 hours or with her head covered by a blanket for over an hour. However, it was reasonable for both the HR director and the director, based upon their viewing of the video, to conclude that the claimant slept during her shift on August 2, 2024. In the video, the claimant is clearly visible wrapping the blanket around her body, sitting on the chair, leaning back, resting her feet on the ottoman, and covering her face with the blanket. In all respects, it would appear to a reasonable person viewing the video that it had captured an instance in which the claimant was, in fact, going to sleep. Furthermore, as both the director and the HR director testified, the camera in the office is activated by motion sensors and only records whenever there is motion within the office. It is therefore reasonable that several of the time jumps within the video occur while the claimant is completely covered and resting on the chair. Although the claimant’s attorney got each employer witness to admit that they are not technical experts regarding the camera and the way it records, there is nothing within the record itself that otherwise casts doubt on the nature of how the camera works or the video’s authenticity. The claimant herself did not refute the employer witnesses’ testimony that the camera only records when there is motion in the office.

Moreover, the record itself is replete with contradictions from the claimant regarding what happened on the night in question. At the time that she was discharged, she failed to provide the director with an explanation or an excuse. When she filed for unemployment benefits and answered a DUA questionnaire, the claimant provided a reason for her sleeping, explaining that she was tired from the previous night of work. When explaining this answer during the October 30, 2024 hearing, however, the claimant testified that she did not understand the questionnaire, yet the relevant questions cannot be reasonably characterized as confusing. At that time, the claimant testified that she only slept during her 30-minute break on August 2, 2024, and that she remained awake in the office doing homework for school. Yet at the remand hearing, the claimant provided another version of events, testifying that she was not in school at the time, that she was not doing any homework on that day, and that she did not remember sleeping at all. When asked about the employer-provided time records, showing that she clocked out and back in for break between 3:38 a.m. and 4:09 a.m., the claimant did not dispute the records and indicated that she “probably” worked on her break, but when her attorney asked her if she ever clocked out and back in to make up time for when she had been on break earlier that day, the claimant answered that she did not. Given the totality of the evidence in the record, including the video clearly showing the claimant’s actions, and the multitude of contradictions on the claimant’s testimony when attempting to explain those actions, it is concluded that her testimony is not credible and that the claimant chose to go to sleep while she was on the clock on August 2, 2024.

Ruling of the Board

In accordance with our statutory obligation, we review the record and the decision made by the review examiner to determine: (1) whether the consolidated findings are supported by substantial and credible evidence; and (2) whether the review examiner’s ultimate conclusion is free from error of law. Upon such review, the Board adopts the review examiner’s consolidated findings of fact and deems them to be supported by substantial and credible evidence. We further believe that the review examiner’s credibility assessment is reasonable in relation to the evidence presented. As discussed more fully below, we believe that the review examiner’s consolidated findings of fact support the conclusion that the claimant is not eligible for benefits.

Because the claimant was terminated from her employment, her qualification for benefits is governed by G.L. c. 151A, § 25(e)(2), which provides, in pertinent part, as follows:

[No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter] . . . (e) For the period of unemployment next ensuing . . . after the individual has left work . . . (2) by discharge shown to the satisfaction of the commissioner by substantial and credible evidence to be attributable to deliberate misconduct in wilful disregard of the employing unit’s interest, or to a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee’s incompetence . . . .

“[The] grounds for disqualification in § 25(e)(2) are considered to be exceptions or defenses to an eligible employee’s right to benefits, and the burdens of production and persuasion rest with the employer.” Still v. Comm’r of Department of Employment and Training, 423 Mass. 805, 809 (1996) (citations omitted).

In this case, the employer discharged the claimant for sleeping during her shift on August 2, 2024. See Consolidated Finding 26. The employer has a policy which prohibits sleeping while on duty. However, the consequences for violating that policy is disciplinary action up to and including discharge. See Consolidated Findings 3 and 4. Given this discretion, we are unable to conclude that the claimant knowingly violated a reasonable and uniformly enforced policy. Alternatively, the employer may prove that the claimant engaged in deliberate misconduct in wilful disregard of the employer’s interest. 

As an initial matter, the employer must show that the claimant engaged in the misconduct for which she was fired. After remand, the review examiner found that the claimant was not studying in the office as she had indicated in her initial testimony. See Consolidated Findings 
13 and 20. In fact, the review examiner found that she was sleeping, as the claimant was found sitting reclined in a chair, with her feet up on the ottoman, wrapped in a blanket around her entire body, with her face fully covered, asleep. See Consolidated Findings 17–19. 

During the District Court remand hearing, the claimant challenged the authenticity of the video indicating that the video submitted by the employer was only three minutes and 28 seconds long, and, based on the short duration of the video, the employer failed to show that she was sleeping during her shift, or that she had been sleeping for two consecutive hours. Neither party refutes that the surveillance video camera in the office is motion sensitive, meaning it only records periods of time when there is motion in the office. If there is no motion, the video does not record. See Consolidated Finding 21. In the review examiner’s detailed credibility assessment, he acknowledged that the length of the video itself does not show that the claimant was sleeping continuously from 12:46 a.m. until 2:33 a.m. on August 2, 2024. Nevertheless, the review examiner determined that the claimant’s actions during her shift captured the claimant going to sleep and that the time jumps within the video occurred because the claimant remained motionless in the chair. Thus, it was reasonable to infer that the claimant was sleeping while on duty. See Consolidated Findings 16, 17, 18 and 19. Moreover, the review examiner further determined that the claimant’s testimony was inconsistent, and that her testimony that she was not sleeping during her shift was not credible. See also Consolidated Findings 20, 26, and 28. Because the review examiner’s credibility assessment and resultant findings are reasonable in relation to the evidence presented, we will not disturb them. SeeSchool Committee of Brockton v. Massachusetts Commission Against Discrimination, 423 Mass. 7 (1996).

Moreover, he found that she was on duty, as she had not clocked out during any of the time that she was sleeping. The video footage captured the claimant’s activity between 12:46 a.m. and 2:33 a.m. on August 2, 2024. See Consolidated Findings 16, 17, and 18. She did not clock out for her meal break until 3:38 a.m., which was after the period that she was recorded sleeping. See Consolidated Findings 19 and 22. Thus, the claimant engaged in the misconduct for which she was discharged.

As for whether her misconduct was deliberate, the Massachusetts Appeals Court stated, “the unintentional aspect of falling into sleep cannot categorically insulate an applicant from disqualification for benefits.” Shriver Nursing Services, Inc. v. Comm’r of Division of Unemployment Assistance, 82 Mass. App. Ct. 367, 374 (2012).

“Although the act of falling asleep, by its very nature, ordinarily has an unintentional aspect to it, we acknowledge that sleeping on the job may constitute such misconduct in wilful disregard of an employer’s interest as to justify the denial of unemployment benefits. However each such case must be examined individually in light of any mitigating circumstances.” Id. at 373, quoting Wedgewood v. Dir. of Division of Employment Security, 25 Mass. App. Ct. 30, 33 (1987). 

As a matter of common sense, the act of wrapping a blanket around her body, sitting and leaning back on a chair, resting her feet on an ottoman, and covering her face with a blanket demonstrates a deliberate effort to get into a comfortable position in order to fall asleep. See Consolidated Findings 17 and 18. In this regard, the record shows that the claimant’s misconduct of sleeping was deliberate. Since nothing in the record indicates that the claimant forgot to clock out, we can reasonably infer that her failure to do so was deliberate.

In order to determine whether an employee’s actions were in wilful disregard of the employer’s interest, the proper factual inquiry is to ascertain the employee’s state of mind at the time of the behavior. Grise v. Dir. of Division of Employment Security, 393 Mass. 271, 275 (1984). In order to evaluate the claimant’s state of mind, we must “take into account the worker’s knowledge of the employer’s expectation, the reasonableness of that expectation and the presence of any mitigating factors.” Garfield v. Dir. of Division of Employment Security, 377 Mass. 94, 97 (1979) (citation omitted).

Here, the claimant knew that the employer expected her to remain awake during her shift and refrain from sleeping while on duty. See Consolidated Finding 5. That expectation is self-evidently reasonable. The evidence further shows that the claimant was aware that she needed to clock out for her unpaid meal break. See Consolidated Findings 9, 10, and 11. Inasmuch as the clocking out expectation is driven by state law, it is also reasonable. See Consolidated Finding 7.

The claimant provided no explanation or excuse for her actions when the employer informed her that she was observed on video surveillance sleeping at work on August 2, 2024. The absence of mitigating factors for the claimant’s misconduct indicates that the claimant acted in wilful disregard of the employer’s interest. See Lawless v. Department of Unemployment Assistance, No. 17-P-156, 2018 WL 1832587 (Mass. App. Ct. Apr. 18, 2018), summary decision pursuant to rule 1:28.

We, therefore, conclude as a matter of law that the claimant was discharged for deliberate misconduct in wilful disregard of the employer’s interest within the meaning of G.L. c. 151A, § 25(e)(2).

The review examiner’s decision is affirmed. The claimant is denied benefits for the week ending August 10, 2024, and for subsequent weeks, until such time as she has had at least eight weeks of work and has earned an amount equivalent to or in excess of eight times her weekly benefit amount. 

Boston, Massachusetts                                              Date of Decision – April 27, 2026

1. The employer participated as a witness only.
2. The Appeals Court notes that its analysis of on-duty sleeping would apply to both provisions under G.L. c. 151A, § 25(e)(2), deliberate misconduct in wilful disregard of the employer’s interest and knowing violation of a reasonable and uniformly enforced policy. Id. at 372 n. 6.

Charlene A Stawicki, Esquire
Member

Michael J. Albano
Member

Any further appeal would further appeal further appeal would be to a Massachusetts State District Court
(See Section 42, Chapter 151A, General Laws, Enclosed)

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