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