Friday, September 05, 2008

UC - willful misconduct - working to the best of one's ability

Thompson v. UCBR - Commonwealth Court - September 5, 22008 - unreported memorandum decision
Unsatisfactory job performance does not necessarily disqualify a claimant for benefits because incompetence, inexperience or inability to do the job does not amount to willful misconduct. Geslao v. UCBR, 519 A.2d 1096, 1097 (Pa. Cmwlth. 1987). In this regard, “a finding that a claimant has worked to the best of his ability negates a conclusion of willful misconduct.” Norman Ashton Klinger & Associates, P.C. v. UCBR, 561 A.2d 841, 843 (Pa. Cmwlth. 1989).

However, contrary to Claimant’s assertion, a claimant’s failure to work to the best of his ability can constitute willful misconduct. Specifically, this Court has explained: employee’s on the job performance is below the level of his or her ability and this conduct continues over a period of time despite the employee being aware of it as such, it is considered a conscious or careless disregard of the employer’s interest and constitutes willful misconduct. Younes v. UCBR, 467 A.2d 1227, 1228 (Pa. Cmwlth. 1983).

Further, “a showing of actual intent to wrong the Employer is not required. Claimant’s conscious indifference to his employment duties is enough to support a finding of willful misconduct.” Cullison v. UCBR, 444 A.2d 1330, 1331 (Pa. Cmwlth. 1982).

We reject Claimant’s assertion that the Board incorrectly focused on whether Claimant worked to the best of his ability. This standard has a foundation in our precedent. Not working to the best of a person’s ability contains the element of intentionality that rises to willful misconduct if the person is capable of performing the job properly but does not do so.

UC - willful misconduct - sleeping on the job

Dolan v. UCBR - Commonwealth Court - Septeem ger 5, 2008 - unreported memorandum decision
The Court has repeatedly held that sleeping on the job is “prima facie an act of willful misconduct.” Biggs v. UCBR, 443 A.2d 1204, 1205 (Pa. Cmwlth. 1982). Accord Kelley v. UCBR, 429 A.2d 1227 (Pa. Cmwlth. 1981); Ragland v. UCBR, 428 A.2d 1019 (Pa. Cmwlth. 1981); Johnson v. UCBR, 420 A.2d 794 (Pa. Cmwlth. 1980); Markley v. UCBR, 407 A.2d 144 (Pa. Cmwlth. 1979); UCBR v. Simone, 355 A.2d 614 (Pa. Cmwlth. 1976).

Thus, where an employer proves a claimant slept on the job, or a claimant admits he slept on the job, a prima facie case of willful misconduct is proven....As noted above, the record supports the Board’s finding Claimant fell asleep while driving. We agree

Claimant actions constituted willful misconduct, irrespective of whether an ensuing accident and damage to the employer's truck was intentional under Myers v. UCBR, 533 Pa. 373, 625 A.2d 622 (1993) (an employee’s involvement in three accidents in six-month period was, at most, the result of negligence rather than intentional or deliberate conduct; negligent conduct does not equate to willful misconduct for unemployment compensation purposes) and Finch v. UCBR, 692 A.2d 619 (Pa. Cmwlth. 1997)

UC- voluntary retirement - pre-retirement termination

Port Authority v. UCBR - Commonwealth Court - September 4, 2008

Claimants' employment was terminated; they did not quit their jobs - Following the decisions in Amado v. UCBR, 110 A.2d 807 (Pa. Super. 1955) and PECO Energy Co. v. UCBR, 682 A.2d 40 (Pa. Cmwlth. 1996, and distinguishing that in Davila v. UCBR, 926 A.2d 1287 (Pa. Cmwlth. 2007), the court held that where the employer discharged claimants before their designated retirement dates in a deferred retirement option plan (DROP), the claimants "are considered to have been discharged until such time as those periods expire, and after which time they are considered to have voluntarily quit."

Under the DROP program, the claimants submitted their resignations but continued to work, by agreement with the employer, which had the right to discharge the claimants at any time. However, "such resignations and participation were not sufficient to waive their right to unemployment compensation.....[U]nder Section 701 of the Law, 43 P.S. § 861, employees cannot agree to waive their unemployment compensation benefits. Were we to accept employer’s argument, well-counseled employers would simply ask each new hire to resign effective his first day of work and select a period during which he requested to continue work. Employer could then keep the employee at its leisure, until it unilaterally decided it no longer wished to employ him, at which point it would “retire” him, and such “retirement” would be considered a voluntary quit. Such a scheme subverts the intention of the Law."

"Although Claimants tendered resignations, which purported to be effective as of February 2003, employer invited them to request a period during which they would continue to work, and employer then continued to employ Claimants during this selected period, after the purported effective date of Claimants’ resignations. Under these facts, it is clear that Claimants’ resignations were to be effective at the end of their DROP periods. Therefore, pursuant to Amado and PECO, the Board did not err in determining that, during the time prior to the expiration of their DROP periods, Claimants’ unemployment should be considered involuntary, and analyzed under Section 402(e)"

Claimants are not at fault for the unemployment under Sec. 3 - The court also rejected the employer argument that claimants should be disqualified under Sec. 3 of the UC Law. Claimants were clearly willing and available to continue working had employer not required them to stop. We do not view such participation [in the DROP program] as the sort of culpability upon which this Court has relied in the cases employer cited dealing with Section 3. Employment in Pennsylvania is usually considered to be at-will. Even assuming that claimants had a right to continued employment, which they somehow relinquished by entering into the DROP program, such relinquishment would not be fault of their own sufficient to deny benefits when employer subsequently discharged them.

UC is not a means-tested program - The court rejected the employer's argument that benefits should not be awarded because claimants are not "subject to econonic hardship. Even though the UC law is meant to relieve the "economic hardship of sudden unemployment and provide temporary assistance for the resulting economic burden,” there is "no authority for the proposition that unemployment compensation benefits are, or should be, means-tested, or that only claimants who will be impoverished may receive benefits."