Saturday, July 14, 2018

UC - willful misconduct - disparate treatment


Allen v. UCBR – Cmwlth. Court – June 12, 2018 – reported, precedential decision

Held:  Claimant committed willful misconduct by violating employer rule prohibiting the use of profane, abuse, or threatening language toward fillow employees and others, even though both claimant and his supervisor used racial slurs in an exchange of emails. 

The referee, board, and court all upheld different consequences for Claimant, who was fired, and his supervisor, who was not, based on findings that claimant was the instigator of the altercation, and had used threatening language (including reference to a weapon).

From the opinion:

Disparate treatment is “an affirmative defense” that can excuse conduct that might otherwise be willful misconduct - a claimant who has engaged in willful misconduct may still receive benefits....” Geisinger Health Plan v. UCBR, 964 A.2d 970, 974 (Pa. Cmwlth. 2009).   

Disparate treatment is not proven where there is a difference in the alleged employee misconduct  -  Bays v. UCBR,  437 A.2d 72 (Pa. Cmwlth. 1981) (illegal work stoppage in which some were “ringleaders” and others were “reluctant participants”)

Disparate treatment based on race is improper... - In the seminal case, Woodson v. UCBR, 336 A.2d 867 (Pa. 1975), the employer discharged the claimant (and others) for excessive absenteeism. Our Supreme Court held that the employer did not prove willful misconduct because its work rule against excessive absenteeism had been enforced in a racially discriminatory manner. It held:”[W]e cannot sanction the Bureau’s acceptance of an employer’s standard which expects certain conduct from black employees, but not from white employees. The use of such a standard to determine unemployment benefits constitutes state action based on the racially discriminating policies of an employer. This is prohibited.”

Disparate treatment improper even where race is not involved -City of Beaver Falls v. UCBR, 441 A.2d 510 (Pa. Cmwlth. 1982), this Court considered the city’s inconsistent enforcement of its requirement that city employees had to live in the city.   Drawing on Woodson, 336 A.2d 867, we explained the need for consistent enforcement of a work rule as follows: The [Supreme] Court held that a standard of conduct which an employer may expect of an employee must be equally applied to both blacks and whites. We believe that such a consideration is equally applicable where racial discrimination is not involved. Beaver Falls, 441 A.2d at 512.  An employer’s “inconsistent enforcement of its [work rule] did not establish such a standard of conduct with which it could reasonably expect its employees to comply.” Id. Stated otherwise, a written work rule that is not enforced uniformly is no more than a piece of paper.”   Inconsistent enforcement of a work rule defeats the existence of the work rule. Beaver Falls, 441 A.2d 510.  An employer cannot pursue haphazard enforcement of its work rule and expect that rule to be dispositive of a claimant’s eligibility.   To be sure, an employer may change its enforcement policy from one of a lax posture to one of zero tolerance, but it must warn employees of the new strict enforcement policy.  

Employers have some discretion in deciding when to punish a rule violation - It is not the Board’s province to usurp the management prerogative of the employer, which must decide on a case-by-case basis what discipline to impose when a work rule infraction occurs. Geisinger, 964 A.2d 970 (holding that a discharge for multiple infractions of a computer policy did not render the work rule a nullity because other employees, with far fewer violations, were not discharged).

The Board overstated the holding in Bays -  Here, the Board stated that “Commonwealth Court has held that ‘the mere fact that one employee is discharged for willful misconduct and others are not discharged for the same conduct does not establish disparate treatment.’” Board Adjudication at 1 (quoting American Racing, 601 A.2d at 483) (emphasis added). In actuality, this quoted sentence was not the holding in American Racing but, rather, a characterization of the Bays decision, where there was a common thread to the willful misconduct of multiple employees, i.e., participation in a work stoppage. However, the employees acted differently during that work stoppage and, thus, were disciplined differently. This single sentence from American Racing, which overstates the principle established in Bays, is obiter dictum. The Board has erroneously made it the holding of American Racing, and it is not. . . .The holding in American Racing was, simply, that refusal to follow a directive constitutes willful misconduct, and there was no suggestion that insubordination was generally tolerated by the employer.




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