Written by attorney John A. Gallagher

Pennsylvania Unemployment: What is Willful Misconduct, Anyway!

Willful misconduct is the term used to deny unemployment benefits to employees who have been terminated from work because they did something wrong. The term implies intentional or grossly negligent conduct by the employee, but we are finding that referees at unemployment hearings are using it more liberally, or I should say, more conservatively, in order to deny employees' unemployment claims. The established test for what constitutes willful misconduct is set forth in this excerpt from a 1977 Pennsylvania case called UCBOR v. Vereen: As a general principle in order to deny unemployment compensation benefits to an employee, his or her action must involve a wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer. The part of this test that we are finding unemployment referees are relying upon in order to deny benefits is "negligence in such degree or recurrence as to manifest culpability... or show... substantial disregard of the employer's interests or of the employee's duties and obligations to the employer." In other words, we are finding a number of employees who made honest mistakes at work, i.e. a car mechanic who did not see a power steering fluid leak, a painter who allowed a thin mist spray to settle on a nearby car on a windy day, a maintenance technician who was unable to fix a leaky pipe, being denied benefits on the theory that they "should have done a better job." We really do not believe that such conduct should be categorized as willful misconduct. However, in an apparent effort to maintain the unemployment compensation fund, Pennsylvania unemployment referees are more and more frequently denying unemployment benefits to employees who, while perhaps negligent in their duties, were otherwise loyal employees who simply had a bad day, or a bad moment, or were unable to prevent a circumstance which caused difficulties to the employer. The trend we are seeing suggest more and more that, given the substantial value of unemployment benefits to Pennsylvania residents who are fired from their job, people facing an unemployment hearing should seriously consider retaining legal counsel to assist them.

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