Wednesday, December 23, 2009

UC - willful misconduct - lateness - child-care problems

Mount Airy Casino Resort v. UCBR - Cmwlth. Court - December 23, 2009 - unreported memorandum opinion


http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/791CD09_12-23-09.pdf


child care problems can be "good cause" for lateness or absence
The court affirmed the UCBR holding that the claimant, who was sometimes late for work because of child-care problems, was not guilty of willful misconduct because he had "good cause for his absences and late arrivals. An employee may be entitled to receive benefits despite the violation of a work rule if he can demonstrate “good cause for his actions.” Crawford v. UCBR, 455 A.2d 751, 752 (Pa. Cmwlth. 1983).

Even "excessive late arrivals or absences will not constitute willful misconduct if the employee has good cause for the absences or late arrivals and properly reports them. Gillespie v. UCBR, 523 A.2d 1205, 1207 (Pa. Cmwlth. 1987). The necessity of taking care of children can constitute good cause. Mulqueen v. UCBR, 543 A.2d 1286, 1288 (Pa. Cmwlth. 1988); King v. UCBR, 414 A.2d 452, 455 (Pa. Cmwlth. 1980).


voluntary quit v. termination due to child-care issues
In cases where a claimant voluntarily quits due to childcare issues, the court has required a showing that the claimant reasonably investigated options to obtain the necessary childcare prior to quitting. Shaffer v. UCBR, 928 A.2d 391, 394 (Pa. Cmwlth. 2007); Beachem v. UCBR, 760 A.2d 68, 71 (Pa. Cmwlth. 2000). The court appears to have applied a similar standard in determining whether a claimant had good cause for an absence that led to her termination in King, 414 A.2d at 455 (noting that the claimant’s “efforts to make child care arrangements with friends, neighbors, relatives and day care centers were more than reasonable”).


The court found, however, that "there is a qualitative difference between a claimant who quits due to childcare issues and one who is terminated despite attempting to continue working in good faith. Importantly, a claimant who decides to quit his employment due to childcare reasons is in control of when the employment relationship ultimately ends. Therefore, it is expected that such a claimant will make substantial efforts in searching for alternative childcare before he resorts to quitting due to a lack of childcare. [emphasis added]

On the other hand, where a claimant is discharged from his employment for absenteeism or tardiness, the claimant is not in control of when the employment relationship ends, and the claimant must operate under more limited time constraints that are dictated, in large part, by the employer." While a claimant with a child-care problem "is expected to make reasonable efforts to find alternative childcare before he may use lack of childcare to establish a good cause basis for being absent or tardy, he is not necessarily required to make the same efforts that would be needed to justify quitting due to a lack of childcare." [emphasis added]

In this case, the record supports a finding that the claimant made sufficient attempts to arrange for alternative childcare under the circumstances. It also showed the "employer’s own acknowledged unwillingness to work with Claimant to arrange a schedule that would accommodate Claimant’s childcare needs."

Therefore the court "agreed with the Board that, under the circumstances of this case, Claimant had good cause for his final late arrivals and these late arrivals do not, therefore, rise to the level of willful misconduct."

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