Monday, March 16, 2015

UC - willful misconduct - use of work phone/computer for personal business


Oyetayo v. UCBR – March 4, 2015 – Cmwlth. Court

 


 

Claimant disqualified for willful misconduct and violation of employer rule against person use of work telephone and computer (email), after having receiving two prior warnings about zero tolerance policy.

 

De minimis rule not applicable after warning about strict enforcement.

While an employee at Employer would normally be permitted to engage in the occasional use of his work computer for personal email, Claimant was not a normal employee; instead the Board found that Claimant had been issued written warnings that directed him not to engage in any unauthorized use of Employer’s resources for personal reasons. Claimant’s argument that his personal email use fell within the de minimis exception therefore fails because Employer had advised Claimant that his prior personal use of Employer’s resources had exceeded what was allowed and any future use would be seen as a violation of Employer’s rules.

 

Doing personal things at work

There is no question that Claimant’s conduct was not merely negligent but rather of an intentional and deliberate nature. Grieb v. UCBR, 827 A.2d 422, 426 (Pa. 2003).   Moreover, this Court has on numerous occasions determined that a claimant’s use of work time to engage in personal affairs without authorization was willful misconduct even where not prohibited by a specific work rule because it was contrary to reasonable standards of behavior that an employer can expect from its employees. See, e.g., Pettyjohn v. UCBR, 863 A.2d 162, 165 (Pa. Cmwlth. 2004) (holding that access of internet for personal reasons  during working hours after being advised not to constituted willful misconduct); Baldauf v. Unemployment Compensation Board of Review, 854 A.2d 689, 692 (Pa. Cmwlth. 2004) (holding that the claimant engaged in willful misconduct by accessing personal email and non-work related websites while being paid to work); Wetzel v. UCBR, 370 A.2d 415, 417 (Pa. Cmwlth. 1977) (holding that the claimant, whose employment was terminated for crocheting at work despite several warnings not to do so, had engaged in willful misconduct). Furthermore, “[a] conclusion that the employee has engaged in disqualifying willful misconduct is especially warranted in...cases where...the employee has been warned and/or reprimanded for prior similar conduct.” Ellis v. UCBR, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013) ....Accordingly, because Claimant knowingly violated Employer’s work rule and because Claimant has not put forward any argument that he had good cause for violating the work rule, we hold that the Board did not err in concluding that Claimant was ineligible for benefits due to willful misconduct.

 

No duty to provide copy of record absent request by Claimant

Claimant cites no authority which imposes an affirmative duty on the Board to send a claimant a copy of the record at the same time as it is sent to this Court.  Instead, the applicable Board regulations provide that “[i]n the event of an appeal from the decision of the Board to the Commonwealth Court, a party may request a transcribed copy of the record of the testimony, and it shall be furnished without charge.” 34 Pa. Code § 101.71 (emphasis added). The Board’s regulations further provide that: When an interested party or his representative requests information from the file of the Board in order to present and maintain the issues...in an appeal to the Court, such information (including the hearing transcript, where the record has been transcribed) shall be made available at a reasonable time to the party and his representative, without charge,...for examination, copying and making notations therefrom.

34 Pa. Code § 101.54(b) (emphasis added). As there is no allegation that either Claimant or his attorney requested a copy of the record from the Board and the Board denied such a request, the Board did not act inappropriately or deny Claimant his due process rights by failing to send Claimant a copy of the certified record.

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