Thursday, June 23, 2011

UC - self-employment - attorney - sec. 402(h)

Kress v. UCBR - Cmwlth. Court - June 23, 2011

Claimant, an attorney, was hired by a law firm to do Criminal Justice Act (CJA) cases, and applied for UC benefits after he was laid off.

Under Section 402(h) of the Law, an employee who engages in self-employment is ineligible for benefits unless (1) the self-employment began prior to the termination of the employee’s full-time employment; (2) the self-employment continued without substantial change after the termination; (3) the employee remained available for full-time employment; and (4) the self-employment was not the primary source of the employee’s livelihood. O’Hara v. UCBR, 648 A.2d 1311 (Pa. Cmwlth. 1994). The claimant bears the burden of proving that his activity is non-disqualifying under Section 402(h). Id. Claimant contends that the Board erred in denying him benefits because he met all of the above criteria. We agree.

- Claimant’s activities in respect to the CJA clients remained the same before, during and after his employment with Employer. Consequently, Claimant met the first prong of the test.

- Because the test is whether the claimant has worked on the activity for significantly more hours than he did prior to the separation, and the only testimony available was from Claimant who stated that his workload remained roughly the same, Claimant also met this prong of the test.

- Because Claimant testified that he was available for full-time employment and was looking for a job at a law firm, he met the third prong of the test.

- Clearly, the sideline job was not a primary source of income at $10,000 a year compared to his law firm job paying $65,000 a year, and Claimant met the fourth prong as well.

Because Claimant proved that his CJA activities were nondisqualifying under Section 402(h), Claimant is entitled to unemployment compensation benefits.

UC - willful misconduct - absenteeism

Abdellah v. UCBR - Cmwlth. Court - June 23, 2011

Absenteeism, alone, “is not a sufficient basis for denial of unemployment benefits,” even though it may constitute grounds for discharge. Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth. 1987).

In order for absenteeism to constitute willful misconduct, an additional element is necessary. Id. Factors that are considered in leading to a showing of absenteeism constituting willful misconduct are: “(1) [e]x-cessive absences, (2) [f]ailure to notify the employer in advance of the absence, (3) [l]ack of good or adequate cause for the absence, (4) [d]isobedience of existing company rules, regulations, or policy with regard to absenteeism, [and] (5) [d]isregard of warnings regarding absenteeism.” Petty v. UCBR, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

When an employer fires a claimant for a pattern of absenteeism, the claimant will be eligible for benefits if the final absence was justified. See, e.g., Runkle, 521 A.2d at 531 (holding claimant eligible for benefits because there was substantial evidence to show claimant was ill on her last absences); Haigler v. Commonwealth, 462 A.2d 954, 955 (Pa. Cmwlth. 1982) (holding claimant ineligible for benefits because he failed to justify his last absence).