Tuesday, April 09, 2013

UC - willful misconduct - job application - omitting criminal record history

Moore v. UCBR – Cmwlth – Court – April 8, 2013 – unreported memorandum decision

Claimant’s action of omitting the details of her lengthy criminal history, despite Employer’s emphasis of the importance of honesty on her job application, was material to Claimant’s employment, we affirm the Board’s Order.  When filling out her employment application, Claimant indicated that she had a criminal record, but listed only one conviction for conspiracy. In fact, Claimant’s six-page criminal history included numerous convictions, including forgery and identity theft. After performing a criminal background check that revealed numerous convictions, Employer discharged Claimant on September 2, 2011

This Court has consistently held that “[UC] benefits are properly denied when a claimant’s discharge stems from a false or incomplete statement on an employment-related application document if the misrepresentation is knowing and material to the employee’s qualifications for the job at issue.” Sill-Hopkins v. Commonwealth, 563 A.2d 1288, 1290 (Pa. Cmwlth. 1989) (holding that claimant’s misrepresentation regarding her availability to sell securities was material because a “significant nexus” existed between the misrepresentation and the ability to perform the job at issue). The materiality of a misrepresentation is determined based on “the factual matrix present in each case.” Id. (citing Albater v. Unemployment Compensation Board of Review, 423 A.2d 9, 11 (Pa. Cmwlth. 1980)).  “We must look at the circumstances surrounding each case in order to determine whether information concealed from the employer is material to the employment.” Albater, 423 A.2d at 11. Thus, this Court looked both to the nature of the job at issue and also to the nature of the criminal record concealed.

In this case, it appears that Claimant’s position was not one requiring a great deal of trust or an unblemished criminal record.  Employer’s witness credibly testified that Employer would have hired Claimant despite her criminal record. .. However, the information Claimant concealed was not merely an arrest, but a lengthy history of convictions for crimes involving dishonesty, such as forgery and identity theft. Moreover, at issue in this case is not merely Claimant’s criminal history, but her active concealment of this history despite Employer’s instruction to Claimant that it was important that she be honest on her application.

Dishonesty in connection with one’s employment constitutes a disregard of expected standards of behavior where the employee’s actions are affirmatively deceptive. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253, 256-57 (Pa. Cmwlth. 2004). Contrary to Claimant’s arguments, Claimant “was well aware of the importance of accuracy” and truthfulness to Employer. Simonds v. Unemployment Compensation Board of Review, 535 A.2d 742, 744 (Pa. Cmwlth. 1988). Employer’s witness testified, “I tell everyone, just be truthful, okay, just be truthful on your application.”

In Claimant’s testimony, she stated, “I knew that when you typed in my name, everything was going to come up.” (Hr’g Tr. at 11 (emphasis added).) Nonetheless, Claimant deliberately omitted5 the details of her criminal history, despite knowing that Employer intended to verify the truthfulness of Claimant’s application. Employer may not have cared about Claimant’s past criminal history when making its employment decision, which is consistent with the “deeply ingrained public policy of this State to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders.” Unemployment Compensation Board of Review v. Dixon, 365 A.2d 668, 669 (Pa. Cmwlth. 1976). However, Employer emphasized the importance of truthfulness during the application process to its applicants. Given the nature and length of Claimant’s criminal history and her active concealment thereof, despite Employer’s emphasis regarding the importance of honesty on the job application, we hold that the Board did not err in finding that Claimant’s deception was material to her employment.


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.