Tuesday, May 01, 2018

UC - willful misconduct - lack of willfulness - health reasons for absence - unreasonable rule


Klampfer v. UCBR – Cmwlth. Court – February 1, 2018

Held:  Claimant not guilty of willful misconduct for violating an employer rule concerning absences, where
            - she recently had heart surgery
            - employer granted her FMLA leave
            - she called off work four (4) times within 90 days of her return to work, for legitimate health reasons, in violation of employer rule
            - employer rule did not exempt legit. health reasons from its rule
            - claimant was not able to get doctor’s note until the very day that employer terminated her

No willful misconduct
An employer seeking to prove willful misconduct by a policy violation must demonstrate the existence of the policy, its reasonableness, and its violation. Guthrie v. UCBR, 738 A.2d 518 (Pa. Cmwlth. 1999). “The employer must also show that the employee intentionally or deliberately violated the work rule.” Chester Cmty. Charter Sch. v. UCBR, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (emphasis added). This Court “must determine if the work rule is reasonable in light of all the circumstances and whether [a claimant] had good cause to violate the work rule.” Caterpillar, Inc. v. UCBR, 703 A.2d 452, 459 (Pa. 1997). 

It is “undisputed here that claimant’s absences ere due to illness.”    “[T]he law is clear that absence due to illness is not willful misconduct.” Green v. UCBR, 433 A.2d 587, 589 (Pa. Cmwlth. 1981) (reversing Board determination that claimant’s seven absences constituted willful misconduct when some absences related to sickness); see Tritex Sportwear, Inc. v. UCBR, 315 A.2d 322 (Pa. Cmwlth. 1974). When the violation of an employer’s absence policy is grounds for termination, and the policy makes no distinction between absences for illness and absences for other reasons, we do not discern willful misconduct based on the policy violation alone. Green.   

Here, as in Green, the Court did not discern any element of “willfulness in Claimant’s violation of the Policy when she was absent four times within 90 days as a result of her illness. When a claimant violates a policy because of her illness, we do not ascribe deliberate disregard to her violation. See Phila. Parking Auth. v. UCBR, 1 A.3d 965 (Pa. Cmwlth. 2010) (inadvertent violation of employer’s rule does not constitute willful misconduct). While such absences may be a reason for discharge, they are not a reason for a denial of UC benefits. Runkle v. UCBR, 521 A.2d 530 (Pa. Cmwlth. 1987); Green. That Manager warned Claimant about potential discipline as a result of her absences without documentation does not alter this conclusion.  

In addition, a claimant with a documented illness has good cause for her absences. See, e.g., Phila. Parking Auth., 1 A.3d at 968 (“Physical illness can constitute good cause for a claimant’s noncompliance with an employer’s directive.”).   Moreover, Claimant’s uncontradicted testimony is sufficient evidence to establish good cause. Roberts v. UCBR, 977 A.2d 12 (Pa. Cmwlth. 2009) (reversing Board; holding claimant had good cause for rule violation under the circumstances based on claimant’s uncontradicted testimony). A claimant is not required to produce medical testimony to substantiate her illness; her own uncontradicted testimony is competent evidence of her illness. Phila. Parking Auth., 1 A.3d 965

Unreasonable application of employer rule
A claimant’s violation of an employer’s sick leave policy may be valid cause for discharge, but not for a denial of UC benefits. Phila. Parking Auth. v. UCBR  (Pa. Cmwlth., No. 609 C.D. 2015, filed November 17, 2015), 2015 WL 7356313 (unreported) (holding employer unreasonably applied policy to claimant who had serious health condition). In Philadelphia Parking Authority, the claimant reached her maximum sick leave under the policy, such that additional sick days led to discipline. As a result, she requested and received approved FMLA leave. Nonetheless, the employer discharged her for noncompliance with its sick leave policy. In concluding the claimant did not commit willful misconduct, we explained, “apply[ing] its regular policy for employees who have called in sick, to an employee who has requested, certified, and received leave under the FMLA is not reasonable.” Id., slip op. at 9, 2015 WL 7356313, *5. The Policy here permits the discharge of an employee who is ill four times within a 90-day period regardless of the circumstances. Claimant is recovering from open-heart surgery. Claimant was absent because of illness four times in the two weeks following her medical leave. In light of these circumstances, Employer did not prove Claimant’s absences rose to the level of willful misconduct. Runkle; Green.

And because Claimant’s absences due to illness do not show a deliberate disregard for Employer’s interests, the Board erred as a matter of law in determining that Claimant’s four call offs within 90 days constituted willful misconduct.

UC - indpt. contractor - self-employment - claimant not self-employed


HPM Consulting v. UCBR – Cmwlth. Court (2-1) – April 13, 2018

Held:  Claimant, a safety consultant, not self-employed, despite written agreement stating that he was an independent contractor. 

Presumption that individual is an employee
“Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that—(a) such individual has been and 4 will continue to be free from control or direction over the performance of such services both under [his] contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. “ 43 P.S. § 753(l)(2)(B).

“The purpose of Section 4(l)(2)(B) [of the Law] ‘is to exclude independent contractors from coverage.’ Beacon Flag Car Co., Inc. (Doris Weyant) v. Unemployment Comp[.] [Bd.] of Review, 910 A.2d 103, 107 (Pa. Cmwlth. 2006). ‘This provision presumes that an individual is an employee.’ Id. However, ‘this presumption may be overcome if the putative employer sustains its burden of showing that the claimant was free from control and direction in the performance of [his] service and that, as to such service, was customarily engaged in an independent trade or business.’ Id. ‘Unless both of these showings are made, the presumption stands that one who performs services for wages is an employee.’ Id. Minelli v. UCBR, 39 A.3d 593, 595-96 (Pa. Cmwlth. 2012).

The employer did not overcome the strong presumption of Claimant’s status as an employee. See Famularo Catering, Inc. v. Dep’t of Labor & Indus., 125 A.3d 866, 869 (Pa. Cmwlth. 2015) (quoting Electrolux Corp. v. Dep’t of Labor & Indus., Bureau of Employer Tax Operations, 705 A.2d 1357, 1359–60 (Pa. Cmwlth. 1998) (“[A] person receiving remuneration for services rendered is presumed to be employed and therefore to have ‘employment’ within the meaning of the [Law] . . . .”)). “[T]he record here lacks any evidence that Claimant customarily engaged in an independent business . . . .” Jia v. UCBR, 55 A.3d 545, 549 (Pa. Cmwlth. 2012). “Claimant’s testimony is clear that he was not so engaged, and there is no contrary evidence.” Id. “The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.” Id.

Agreements not dispositive
The Commonwealth Court has “repeatedly held that the existence of an independent contractor agreement is not dispositive of the work relationship,” Lello v. UCBR,  59 A.3d 1153, 1159 (Pa. Cmwlth. 2013).  Nor is the fact that the claimant did not receive a W-2 form dispositive of the issue.   In fact, the contracts here “contain ample evidence supporting Claimant’s presumptive employee status which HPM, who had the burden, did not overcome. For example, the contracts specified Claimant’s hourly rate of pay as well as his overtime rate of pay, and per diem expenses. . . ..  In addition, the contracts expressed that Claimant’s home trips “will be scheduled with approval from the job site” and he consented to drug testing at the jobsite. . . . Further, they provided that Claimant was responsible for his steel tip boots and clothing but would be furnished all necessary equipment at the job site.

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