Wednesday, August 08, 2012

UC - availability for work

Hellams v. UCBR - Cmwlth. Court - August 8, 2012 - unreported memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/2491CD11_8-8-12.pdf

Woman who was caring for her husband was not available for work.

Section 401(d)(1) provides that in order to receive benefits, an employee must be "able to work and available for suitable work." 43 P.S. § 801 (d)(1). To establish availability for work, a claimant must be ready and able to accept employment, and be actually and currently attached to the labor force. Ruiz v. Unemployment Comp. Bd. of Review, 911 A.2d 600 (Pa. Cmwlth. 2006). It is the claimant’s burden to prove she is available for work. Hamot Med. Ctr. v. Unemployment Comp. Bd. of Review, 645 A.2d 466 (Pa. Cmwlth. 1994). Whether a claimant is available for work is a question of fact for the Board. Gettig Eng’g v. Unemployment Comp. Bd. of Review, 473 A.2d 749 (Pa. Cmwlth. 1984).
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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

UC - willful misconduct v. incompetence - level of previous ability

Hoffman v. UCBR - Cmwlth. Court - August 8, 2012 - unpublished memorandum decision

http://www.pacourts.us/OpPosting/Cwealth/out/232CD12_8-8-12.pdf

To establish willful misconduct, the employer must demonstrate that the employee’s conduct was of an intentional and deliberate nature. Myer v. Unemployment Comp. Bd. of Review, 533 Pa. 373, 625 A.2d 622 (1993). Therefore, "[m]ere incompetence, inexperience or inability of an employee can justify a discharge, but will not constitute willful misconduct so as to render an employee ineligible for benefits." Cullison v. Unemployment Comp. Bd. of Review, 444 A.2d 1330, 1332 (Pa. Cmwlth. 1982). However, a claimant’s work performance below the level of his ability over a period of time may be considered a conscious or careless disregard of the employer’s interests and may rise to the level of willful misconduct. Younes v. Unemployment Comp. Bd. of Review, 467 A.2d 1227 (Pa. Cmwlth. 1983).
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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

FMLA - employee notice - pretext analysis

Lichtenstein v. UPMC - 3d Cir. - August 3, 2012

http://www.ca3.uscourts.gov/opinarch/113419p.pdf

This case was largely decided on the basis that there were factual disputes that precluded summary relief for the employer.

It contains a lot of good discussion and analysis about FMLA in general and, in particular

- the specificity of the infomation that an employee has to give an employer to invoke FMLA, and

- the nature of pretext analysis when a legitimate justification for terminating an employee precedes the employee's exercise of FMLA rights.



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