dissenting. In this case of first impression for the State of Arkansas, the majority holds that an employee, who is terminated because of her failure to attain certification required by law, has not engaged in “misconduct,” and is therefore entitled to unemployment benefits. I disagree.
Debbie Hamilton began working for appellant in 1986, first as a phlebotomist, and then, from 1994 until her termination on January 1, 1997, as a respiratory assistant. As the majority opinion correctly points out, our General Assembly passed legislation in 1995 requiring individuals engaged in the practice of respiratory care to obtain a license from the Arkansas State Medical Board (“Medical Board”). See Ark. Code Ann. §§ 17-99-301 & 302 (Repl. 1995). In order for a license to be issued, Hamilton, like other similarly situated respiratory care therapists, was required to pass certification examinations.
After having failed to achieve the minimum passing score on a prior occasion, the Medical Board informed appellee in writing, on November 8, 1996, that she needed to pass the examination by December 30, 1996, the expiration date of her second temporary license. Hamilton prepared for this exam but again failed to achieve the minimum score necessary for certification.
Appellant also received a letter from the Medical Board, informing it that it would be in violation of the laws of this State should it continue to employ Hamilton as a respiratory therapist after December 30, 1996. Our statutory law is clear on this point, “[i]t shall be unlawful for any person to practice respiratory care or to profess to be a respiratory care practitioner . . . without first obtaining ... a license authorizing the person to practice respiratory care in this state.” Ark. Code Ann. § 17-99-301 (a) (Repl. 1995). Faced with no other alternatives, appellant terminated Hamilton on January 1, 1997.
Appellant contends that Hamilton’s failure to pass the required examinations for state respiratory care licensure amounts to misconduct under Ark. Code Ann. § ll-10-514(a)(l). I agree.
On appeal, we are not limited to a “rubber stamp” review of decisions arising from the Board of Review. Instead, where we have reviewed cases involving “misconduct” and found insubstantial evidence to support the findings of the Board, we have not hesitated to reverse. See, e.g., Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997) (the claimant’s use of “harsh and provocative” words held to have not risen to the level of misconduct); Blackford v. Arkansas Employment Sec. Dept., 55 Ark. App. 418, 935 S.W.2d 311 (1996) (claimant did not intentionally withhold information vital to the employer’s interest, nor deliberately inefficient, nor guilty of such negligence as to be deemed in deliberate violation of the employer’s rules); Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996) (claimant’s actions did not amount to misconduct); and, Grace Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990) (holding that employee’s actions constituted misconduct).
Furthermore, this Court has held illegal conduct to be appropriate grounds for a finding of misconduct. See A. Tenenbaum Co. v. Director of Labor, 32 Ark. 43, 796 S.W.2d 348 (1990); Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). Here, Hamilton would have violated the laws of this State had she continued to practice respiratory care. Appellant could have been held accountable for this illegal conduct should it have continued to employ Hamilton.
Citing Kimble v. Director, 60 Ark. App. 36, 959 S.W.2d 66 (1997), the majority provides four factors to be considered in determining whether an employee was engaged in “misconduct,” (1) disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has the right to expect; and (4) disregard of the employee’s duties and obligations to her employer. The majority also cites intent as a critical element to be associated with a finding of “misconduct.”
It is on this element, intent, that I beg to differ with the majority. The majority contends that Hamilton did her best to pass the necessary examinations, but could not. Therefore, the majority posits, Hamilton lacked the intent to act against the employer’s interest. It is my position, however, that whenever continued employment would result in a violation of the laws of this State, that, in every case, there should be a finding of misconduct.
Finally, I would agree with those cases from other jurisdictions, cited by appellant, which have made the determination that the failure to obtain the necessary state licensure equates to misconduct. See, e.g., DiClemente v. Hudacs, 616 N.Y.S.2d 678 (1994) (EMT denied unemployment benefits on the basis of misconduct due to his failure to obtain EMT certification); Pisarek v. Unemployment Comp. Bd. Of Rev., 532 A.2d 54 (Pa. Cmwlth. 1987) (physician’s assistant denied unemployment benefits because of the failure to obtain certification); Richardson v. Employment Sec. Com’n., 593 So.2d 31 (Miss. 1992) (detoxification specialist denied benefits due to misconduct associated with the employee’s failure to maintain a valid driver’s license after his license was suspended for driving without liability insurance).