UC - off-duty misconduct not willful misconduct unless it affects ability to perform job

County of Allegheny v.  UCBR – Cmwlth. Court – May31, 2019

Claimant convicted of off-duty DUI was not disqualified under sec.  3 (off-duty misconduct)  or sec.  402(e)(job-related willful misconduct), even where Employer code of conduct authorized termination of employment for criminal conviction, even when off-duty or unrelated to employment.

From the opinion –

Willful misconduct -402(e) -  Employer argued that Claimant’s off-duty DUI was willful misconduct under sec.402(e), because it violated the employer code of conduct. The court rejected this argument,  noting that a worker is not ineligible for unemployment compensation unless his discharge is for willful misconduct connected with this work.[”]  Palladino v. UCBR, 81 A.3d at 1103.   The fact that Claimant could be discharged for unlawful conduct does not make the misconduct work-connected for purposes of Section  402(e). See Palladino, 81 A.3d at 1103 (citing Robinson, 546 A.2d at 753).  “Off-duty misconduct will not support a finding of willful misconduct under Section 402(e) unless it extends to performance on the job[.]” Palladino, 81 A.3d at 1101 (quoting Burger, 801 A.2d at 491) (brackets omitted); see also Webb v. Unemployment Comp. Bd. of Review, 670 A.2d 1212, 1216 (Pa. Cmwlth. 1996)  There is a critical distinction between the employer’s right to terminate employment and the state’s right to deny unemployment benefits.’ ” Id. (quoting Blake v. Unemployment Comp. Bd. of Review, ... 425 A.2d 43, 45 ( [Pa. Cmwlth.] 1981).

Sec.3 –off-duty misconduct –  The Court affirmed the Board holding that Claimant was not ineligible under sec. 3.   Under Section 3 of the Law, the employer bears the burden to prove “(1) that the claimant’s conduct was contrary to acceptable standards of behavior and (2) that the claimant’s unacceptable conduct directly affects or reflects upon the claimant’s ability to perform his assigned duties.” Palladino, 81 A.3d at 1101 (quoting Frazier, 833 A.2d at 1184–85). Both prongs of the test must be satisfied. Gillins, 633 A.2d at 1154. Notably, Employer does not claim that the unacceptable conduct, i.e., the criminal DUI conviction, affected Claimant’s ability to perform his job duties as a project coordinator⁷ and does not challenge the Board’s determination that the conviction did not affect Claimant’s ability to perform his job. As such, because Employer did not establish one of the two necessary prongs, ineligibility for benefits under Section 3 cannot be established.