Weems v. UCBR - Commonwealth Court - publication ordered June 26, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/1783CD07_6-26-08.pdf
A nine-month absence from work because of incarceration is willful misconduct, despite claimant's alleged eligibility for work release and employer's refusal to participate in the program.
While absenteeism alone does not constitute willful misconduct, "excessive absences and lack of good or adequate cause for the absence" can be. See Medina v. UCBR, 423 A.2d 469 (Pa. Cmwlth. 1980). Although the claimant told the employer that she would be serving a nine-month prison sentence for an assault conviction, her absence due to that incarceration "clearly constitutes excessive absence."
Imprisonment is not good or adequate cause for absence because “an employee who engages in criminal activity punishable by incarceration should realize that his ability to attend work may be jeopardized....It is the inability to attend work, not the criminal conduct, which supports the finding of willful misconduct....Thus, Claimant’s conduct did rise to the level of willful misconduct."
Claimant's alleged eligibility for work release not proven by her testimony
Claimant's testimony that she was eligible for work release was held to be insufficient to prove that she was, in fact, eligible, citing Cruz v. UCBR, 464 A.2d 656 (Pa. Cmwlth. 1983), where the court affirmed a denial of benefits "in part on the lack of any evidence of an order placing the claimant in such a program....Here, aside from Claimant’s testimony that she was eligible for work release, there is no evidence on the record of any court order related to a work release program. Even if such an order does exist, we are not aware of the limitations it might place on Claimant or the responsibilities it might impose on any potential employer."
Employer had a right to refuse to participate in the work release program
The court also rejected claimant's argument that the employer was "obligated to participate in a work release program. Employer cannot be expected to change the conditions of employment in order to accommodate Claimant. In finding the prohibition of unemployment benefits for incarcerated individuals constitutional, we suggested that the General Assembly 'could have felt that while on work release, because of restrictions necessarily imposed under those programs, prisoners were not sufficiently available for work so as to permit them to have a full range of employment options that other claimants have in pursuing new employment'....Employers need not adapt work release restrictions that change the terms of employment. The decision by Employer not to participate in a work release program does not excuse Claimant’s absence from work. Claimant had an obligation to report to work regardless of whether Employer agreed to participate in the work release program."
