Watchout for Willful Misconduct in Pennsylvania Unemployment Compensation Cases

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1

What is An At-Will Employee?

Most people in the Pennsylvania labor force are considered "at-will" employees, meaning that either party can break the employment relationship with nothing owed to the other party, provided there was no express contract for a definite term such as with a union collective bargaining agreement. As a form of protection to workers who are terminated, Pennsylvania (like most states) provides a scheme of unemployment compensation benefits to people who have lost a job through no fault of their own. Unemployment compensation is temporary income meant to help make ends meet while people look for a new job. If eligible for benefits, you will likely receive about half of what your full-time wage was before you became unemployed.

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What is Willful Misconduct?

Unfortunately, some employers inadvertently or intentionally mischaracterize the circumstances of an employee's termination, labeling it as "Willful Misconduct." In Pennsylvania, an employee who is discharged from employment for "willful misconduct" is not eligible to receive unemployment benefits. The phrase "willful misconduct" is generally described as "an act of wanton or willful disregard of the employer's interests, the deliberate violation of rules, the disregard of standards of behavior which an employer can rightfully expect from an employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations." This definition, however, is rather broad and can often lead to misuse and misunderstanding by employers and employees alike. Below are some guidelines in determining an individual's eligibility in specific situations involving willful misconduct.

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Absenteeism/Tardiness

Prior to being discharged for absenteeism or tardiness, the claimant must have been warned about such conduct. Moreover, Willful Misconduct requires an element of conscious wrongdoing. Note, however, there have been cases where one absence was sufficient to show misconduct. The reason for the occurrence will be taken into consideration in determining if the claimant had a good reason for being tardy or absent, but without a showing of willful disregard of the employer's interests, benefits cannot be denied. Generally, if an individual has good cause for missing work, such as being ill or having an ill child, and reports off according to the employer's policy, that individual's conduct does not rise to the level of willful misconduct. When the employer has a progressive discipline point system and an individual is discharged due to accumulating points as a result of absenteeism/tardiness, all absences will be reviewed to determine if if any of the absences were justified

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Rule Violation

Deliberate violation of an employer's rule which is known to the employee constitutes willful misconduct if the employer's rule is reasonable and the employee's conduct, in violating the rule, was not motivated by good cause. The employer must show the existence of the rule and that the rule was violated. The employer must also show that the claimant was aware, or should have been aware, of the rule. If this is established, the claimant must show that the rule was not reasonable, or that he/she had good cause for violating the rule. The policy violated must be placed into evidence by the Employer. Buscemi v.Commonwealth, Unemployment Compensation Bd. of Review, 485 A.2d 1238 (Pa Commonwealth Ct. 1985). Moreover, if it can be demonstrated that the rule in question was not enforced equally, the employee might not be guilty of willful misconduct. Remcon Plastics v.Unemployment Compensation Bd. of Review, 651 A.2d 671 (Pa. Commw. Ct. 1994).

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Attitude Toward Employer or Disruptive Influence

Disregard of standards of behavior which an employer can rightfully expect from his/her employee constitutes willful misconduct. However, where a claimant is discharged due to his/her attitude toward the employer or due to being a disruptive influence, the employer must show specific conduct adverse to the employer's interests.

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Damage to equipment or property

Negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard of the employer's interests or of the employee's duties and obligations constitutes willful misconduct. Where the negligence results in damage to equipment, damage caused by the worker to equipment or materials is not usually misconduct. The employer must show that the action which caused the damage was willful or due to willful carelessness; or, to show that the claimant would not have damaged the equipment if he/she had used reasonable care of which he/she was capable in order for the action to be willful misconduct.

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Unsatisfactory Work Performance

Unsatisfactory work performance is not considered willful misconduct where the claimant is working to the best of his/her ability. However, it is willful misconduct where the employer shows that the claimant was capable of doing the work, but was not performing up to standards despite warnings and admonitions. This is conduct showing an intentional and substantial disregard of the employer's interests.

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Drug and Alcohol Testing

Unemployment law provides for the denial of benefits for failure to submit to and/or pass a drug or alcohol test, provided the test is lawful and not in disagreement with an existing labor agreement. In order to be eligible for compensation, the claimant must show that the test was unlawful, violated an existing labor agreement, or was inaccurate.

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Theft

Theft is an example of Willful Misconduct but it too is rebuttable with evidence to the contrary. In one case, the claimant's testimony that she did not steal money from the employer's cash register, as accused by a coworker, was sufficient to support the adopted findings of the review board in reversing the denial of benefits. Dingbat's v. Commonwealth, Unemployment Compensation Bd. of Review, 552 A.2d 1157 (Pa. Commonwealth Ct. 1989).

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No Hearsay

In willful misconduct cases, the Employer has the burden of proving that willful misconduct has occurred. In meeting this burden, the Employer is not permitted to use hearsay (i.e. statements by persons not present at the hearing). Auddinov. Commonwealth, Unemployment Compensation Bd. of Review, 507 A.2d 913 (Pa. Commonwealth Ct.1986).

Additional Resources

Pennsylvania Unemployment Compensation

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