Wednesday, March 24, 2010

UC - willful misconduct - offensive comments

Sadler v. UCBR - Marcy 24, 2010 - unreported memorandum opinion

Held, library director engaged in willful misconduct when, at a work meeting with other librarians, expressed happines at death of former director by stating that she was happy that the former director died, acted like she was excited, and yelled “yeehaw” in celebration. Later on, during a meeting break but in the presence of the others, she said to another librarian, “Ding dong, the witch is dead,” quoting from the Wizard of Oz song."

For insensitive comments to rise to the level of willful misconduct in cases, such as here, where the Employer has no specific policy governing standards of behavior, they must be of such a character that the speaker knew or intended, or that any reasonable person would have known, that the comments were offensive or inappropriate under the circumstances. Poplin v. UCBR, 690 A.2d 781 (Pa. Cmwlth. 1997). The burden of proof is on the employer to prove allegations of willful misconduct. Phoenixville Area School District v. UCBR, 596 A.2d 889 (Pa. Cmwlth. 1991).
Whether an offensive comment rises to the level of willful misconduct is highly fact-specific.

In Witkowski v. UCBR, 633 A.2d 1259 (Pa. Cmwlth. 1993), we held that a white employee who told two black employees that their employer was “working me like a n----r” committed willful misconduct, while in Poplin, 690 A.2d 781, we held that a white employee who referenced the Ku Klux Klan in the presence of a black employee and then asked the black employee if he wished he were white did not engage in willful misconduct.

In McCall v. UCBR, 717 A.2d 623 (Pa. Cmwlth. 1998), we held that an employee of a business school who was responsible for acquisition and maintenance of a city contract to train persons on welfare engaged in willful misconduct when she questioned whether the program taught students moral values about bearing children out of wedlock and then stated that she “strongly objects to supporting whores on welfare.”

On the other hand, in Gallagher v. UCBR, 388 A.2d 785 (Pa. Cmwlth. 1978), we held that a bartender who called his boss’ girlfriend a “bitch” while at the bar on his day off from work did not engage in willful misconduct because the claimant’s comment was not connected with his work.

Gallagher is most similar to this appeal, but with the important distinction that the claimant in Gallagher was physically present at his place of employment, he was not actually working when he called his employer’s girlfriend a bitch while, here, Claimant was participating in a business meeting at the time of her comments. If Claimant had walked into her library to check out a book on a day she was not working and exclaimed “yeehaw” and “ding dong, the witch is dead” upon hearing of the death of her former director, her comments, while crass, would not have risen to the level of willful misconduct. However, because she was attending a business meeting at the time of her comments and, in fact, interrupted the meeting to express her unabashed pleasure at the news, her conduct was qualitatively different and crossed the line from crassness to willful misconduct. As Claimant acknowledged, it was offensive and inappropriate to express such demonstrative joy over the death of a former supervisor at a business meeting filled with people who knew the deceased and had just learned of her death.

UC - self-employment - sideline activity

LaChance v. UCBR - Cmwlth. Court - December 15, 2009

The UC Law “was not designed to insure a weekly income to those engaged in business ventures who may not realize a profit therefrom during various weekly periods.” Urban v. UCBR, 151 A.2d 655, 656 (Pa. Super. 1959). The Law cannot be used to give benefits to people otherwise employed. See Kirk v. UCBR, 425 A.2d 1188, 1191 (Pa. Cmwlth. 1981) (stating that “[p]ersons who are not so unemployed should not receive benefits from the fund”).

To that end, Section 402(h) of the Law excludes the self-employed from receiving benefits, stating that “[a]n employee shall be ineligible for compensation for any week . . . (h) In which he is engaged in self-employment.” 43 P.S. §802(h). The Law does not expressly define the term “self-employment,” but, in determining whether a claimant is engaged in self-employment, our courts have looked at whether the claimant engaged in positive acts to establish an independent business venture. Leary v. Unemployment Compensation Board of Review, 322 A.2d 749, 750 (Pa. Cmwlth. 1974). In addition, claimants who engaged in business and the solicitation of clients have been viewed as self-employed, regardless of whether the claimants received any income from those efforts. Keslar v. Unemployment Compensation Board of Review, 195 A.2d 886 (Pa. Super. 1963). “Normally the employer has the burden of proving that a claimant is self-employed, but where the bureau acts on its own in suspending benefits because of self-employment, the bureau carries the burden.” Teets v. Unemployment Compensation Board of Review, 615 A.2d 987, 989 (Pa. Cmwlth. 1992).

The Law recognizes that there are industrious individuals who, while employed by another, engage in self-employment which is not their primary source of income. These individuals who become unemployed through no fault of their own may, nonetheless, receive benefits under Section 402(h), which grants an exemption to the general self-employment exclusion. This is known as the sideline activity exception and provides that: [A]n employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in “employment” as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. 43 P.S. § 802(h).

Our Courts have interpreted this statutory language and held that the sideline activity exception is applicable when the following conditions are met: “(1) that the self-employment activity precedes valid separation from full-time work; (2) that it continues without substantial change after separation; (3) that the claimant remains available for full-time work after separation; and (4) that the selfemployment activity is not the primary source of the claimant’s livelihood.” Moshos v. Unemployment Compensation Board of Review, 466 A.2d 258, 259 (Pa. Cmwlth. 1983). A claimant who wishes to fall within the exception bears the burden of showing that all of these requirements are met. See id. n.2.

The parties concede that Claimant meets the first, third, and fourth conditions of the sideline activity exception. The central dispute is whether Claimant meets the second condition of the sideline activity exception. That is, whether Claimant’s increased activity in Quintessence, from zero hours per week to twenty hours per week, absent evidence of income, constitutes a substantial change after separation in which case Claimant would not meet the exception.

In support of his argument, Claimant relies on this Court’s decisions in Dausch v. UCBR, 725 A.2d 230 (Pa. Cmwlth. 1999), and LaSalle v. UCBR, 522 A.2d 1160 (Pa. Cmwlth. 1987). In Dausch, this Court examined the second condition of the sideline activity exception and concluded that “mere preparations undertaken to expand a sideline business . . . do not constitute a substantial change in the sideline business.” Id. at 232 (emphasis added).

In discussing whether a substantial change has occurred in a sideline business pursuant to the second condition, this Court cited to Quinn v. UCBR, 446 A.2d 714, 715 (Pa. Cmwlth. 1982), and Higgins v. UCBR, 405 A.2d 1024, 1025 (Pa. Cmwlth. 1979), as examples of how this Court has “focused primarily on whether a claimant is working in the activity for significantly more hours than he did prior to separation.” Dausch, 725 A.2d at 232 n.7 (emphasis added). In Quinn, 446 A.2d at 715, and Higgins, 405 A.2d at 1025, we held that an increase in hours from thirty to sixty per week and from ten to forty-five per week, respectively, constituted a substantial change in activity in the claimants’ sideline businesses. The Dausch court expanded its focus and did not only look at the hours worked prior to and after separation, but also examined the claimant’s actions to determine whether they were preparatory in nature or whether services were actually performed. Dausch, 725 A.2d at 232. This Court held that because there was no evidence that the claimant worked from the leased office prior to his benefits being terminated, solicited business or advertised for business prior to his termination, or performed services for clients prior to the time that his benefits were terminated, “the claimant’s sideline business activity did not substantially change after his separation from [employer].” Id.

Here, we must disagree with Claimant’s contention that his conduct was merely preparatory in nature and therefore his increase in hours is analogous to that in Dausch. First, just like in Quinn and Higgins, Claimant significantly increased the number of hours he worked (from zero to 20 hours per week) at his sideline business after his termination. Second, Claimant’s conduct of networking for twenty hours per week cannot be classified as merely preparatory and similar to the conduct of the claimant in Dausch. When Claimant, in this case, engaged in soliciting clients and discussing the professional services he could offer to them, he was performing activities that he would perform as part of his independent business venture. This type of activity was specifically found lacking in Dausch. Therefore, Claimant’s argument that Dausch requires Claimant to be found eligible for benefits because his activity did not constitute a substantial change after separation is rejected.

Claimant also contends that, because he generated no income from his sideline activity, he has established that his self-employment activity continues without substantial change pursuant to LaSalle. However, first, we acknowledge this Court’s rule of law that claimants who engage in business and the solicitation of clients have been viewed as self-employed, regardless of whether the claimants received any income from those efforts. Keslar, 195 A.2d at 886.

Second, we note that, although this Court in LaSalle stated that during the claim weeks at issue the claimant in that case did not generate any income from the sideline business, our Court also held that there was “no record evidence to indicate that Claimant’s real estate activity ha[d] increased since her work separation.” LaSalle, 522 A.2d at 1162. Unlike the facts in LaSalle, there is clear evidence here that Claimant significantly increased the amount of work he did for Quintessence following his separation from Employer, which was more than preparatory in nature. Accordingly, we conclude that Claimant’s conduct here constitutes a substantial change in sideline activity.

While we certainly sympathize with Claimant in these financially difficult times, we are constrained by rules of law. The Board did not commit an error of law and, therefore, the Board’s order is affirmed.

disability - hypothetical question - all impairments

Strouse v. Astrue - ED Pa. - March 19, 2010

The case was remanded because of the ALJ's failure to include all of the claimant's mental impairments in his hypothetical question to the vocational expert.

During the fifth step of the evaluation process, the ALJ may pose a hypothetical question to a VE to determine what jobs the claimant is capable of performing given his impairments. Rutherford, 399 F.3d at 554 (3d Cir. 2005). The hypothetical question “must reflect all of a claimant’s impairments supported by the record; otherwise the question is deficient and the expert’s answer to it cannot be considered substantial evidence.” Chrupcala v.Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (citations omitted). The hypothetical need not contain every impairment alleged by the claimant, but it must convey all credibly established limitations. Rutherford, 399 F.3d at 554.

Claimant contends the ALJ did not consider his moderate deficiencies in concentration, persistence, or pace. In a similar case, the Third Circuit found “a requirement that a job be limited to one to two step tasks, as was stated in the hypothetical relied upon by the ALJ, does not adequately encompass a finding that [petitioner] ‘often’ has deficiencies in concentration, persistence, or pace.” Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004). The court concluded the ALJ should have taken the claimant’s deficiencies in pace into account, explaining, “[m]any employers require a certain output level from their employees over a given amount of time, and an individual with deficiencies in pacemight be able to performsimple tasks, but not over an extended period of time.” Id. The court reasoned the VE may have changed her answer as to whether there were jobs in the local or national economy the claimant could perform if the hypothetical had included difficulties inmaintaining concentration, persistence, or pace. Id. Because the hypothetical did not adequately convey all of Ramirez’s impairments, the Third Circuit remanded his claimto the ALJ. Id. at 555.

Because the ALJ did not include claimant’s difficulties in maintaining concentration, persistence, or pace in the hypothetical question posed to the VE, this case is analogous to Ramirez. Thus, because the VE’s answer did not reflect all of claimant's credibly-established impairments, the hypothetical question posed by the ALJ was deficient, and the VE’s answer to it cannot be considered substantial evidence. This Court agrees with the recommendation of the Magistrate Judge, and finds the matter should be remanded to the ALJ to properly include this information in the hypothetical question to the VE.