Pennsylvania Unemployment Appeal Lawyers Representing Employees With Referee Hearings in King of Prussia, Bristol, Springfield, and Philadelphia
Willful Misconduct is the term used to deny Unemployment Benefits to employees who have been terminated from work because they did something wrong. The term implies intentional bad conduct.
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| This is Willful Misconduct |
There are 3 categories of Willful Misconduct:
1) Repeatedly violating a work rule after warning. This typically applies to work rules governing attendance, break times, internet use, etc.
2) Engaging in a single bad act: This typically involves acts of dishonesty such as falsifying time records or other company forms, insubordination (like refusing to do work assigned by supervisor), stealing money, coming to work intoxicated, yelling/cursing at a co-worker or customer, using derogatory language denigrating a race, sex, religion, etc., or surfing porn on the Internet at work, etc.
3) A single act that is "grossly negligent." Typical examples include having an accident with a company vehicle in which you are cited, damaging company property by handling machinery in a careless fashion, etc. Sleeping on the job is often included within this category.
The established test for what constitutes willful misconduct is set forth in this excerpt from a 1977 Pennsylvania case called UCBOR v. Vereen:
As a general principle in order to deny unemployment compensation benefits to an employee, his or her action must involve a wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer.
This standard is well understood by Pennsylvania Unemployment Referees, and by many employers. If you go to your Referee Hearing without a similar understanding, it can be very difficult to win. That is why consideration of retaining an experienced unemployment lawyer is a must.
Is My "Poor Performance" or "Failure top Meet Job Expectations" Willful Misconduct Under Pennsylvania Unemployment Law?
It is well-established that mere poor performance does not constitute willful misconduct.
However, beware - many employers who terminate employees because they are perceived "poor performers" know that they will have to pay unemployment benefits unless they can prove the employee engaged in willful misconduct. Knowing this, they frequently try and create an atmosphere or situation that will cause the targeted employee to do something "stupid," like walk off the job, yell or curse at a co-worker, refuse to do an assigned task, etc.
We refer to such strategical firings as "pretextual terminations." The real reason for the firing is alleged poor performance, but the stated reason for the firing is behavior the employer claims constitutes willful misconduct.
If you believe to are the target of your employer's strategical efforts to fire you, you may want to consider calling an attorney to help you develop a counter strategy. I frequently work "behind the scenes" with targeted employees, and help them secure their right to unemployment benefits, and sometimes more (i.e. severance).
1) Repeatedly violating a work rule after warning. This typically applies to work rules governing attendance, break times, internet use, etc.
2) Engaging in a single bad act: This typically involves acts of dishonesty such as falsifying time records or other company forms, insubordination (like refusing to do work assigned by supervisor), stealing money, coming to work intoxicated, yelling/cursing at a co-worker or customer, using derogatory language denigrating a race, sex, religion, etc., or surfing porn on the Internet at work, etc.
3) A single act that is "grossly negligent." Typical examples include having an accident with a company vehicle in which you are cited, damaging company property by handling machinery in a careless fashion, etc. Sleeping on the job is often included within this category.
The established test for what constitutes willful misconduct is set forth in this excerpt from a 1977 Pennsylvania case called UCBOR v. Vereen:
As a general principle in order to deny unemployment compensation benefits to an employee, his or her action must involve a wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer.
This standard is well understood by Pennsylvania Unemployment Referees, and by many employers. If you go to your Referee Hearing without a similar understanding, it can be very difficult to win. That is why consideration of retaining an experienced unemployment lawyer is a must.
Is My "Poor Performance" or "Failure top Meet Job Expectations" Willful Misconduct Under Pennsylvania Unemployment Law?
It is well-established that mere poor performance does not constitute willful misconduct.
However, beware - many employers who terminate employees because they are perceived "poor performers" know that they will have to pay unemployment benefits unless they can prove the employee engaged in willful misconduct. Knowing this, they frequently try and create an atmosphere or situation that will cause the targeted employee to do something "stupid," like walk off the job, yell or curse at a co-worker, refuse to do an assigned task, etc.
We refer to such strategical firings as "pretextual terminations." The real reason for the firing is alleged poor performance, but the stated reason for the firing is behavior the employer claims constitutes willful misconduct.
If you believe to are the target of your employer's strategical efforts to fire you, you may want to consider calling an attorney to help you develop a counter strategy. I frequently work "behind the scenes" with targeted employees, and help them secure their right to unemployment benefits, and sometimes more (i.e. severance).
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| Some are Fair, and Some... |
How Does an Employer Prove Willful Misconduct at a Pennsylvania Unemployment Hearing Before a Referee?
One difficult aspect of a willful misconduct case is dealing with the evidence that is presented at a (which is where disputed claims are decided).
Prior to the Hearing, you have little opportunity to "discover" what the employer is going to present as evidence at the Hearing. Typically, in fact, the best you can do is go to the Hearing location a few days before the Hearing and review the file. There, you will find the Employer's Questionnaire and any documents submitted by the employer to the Unemployment Service Center (the people that initially determine if you have engaged in willful misconduct). Preparing for a willful misconduct hearing can therefore be difficult.
The Employer Has the Burden of Proof at a Pennsylvania Unemployment Hearing and Therefore Must Present its Case First
Understanding each party's burden of proof, and what that means, is essential. Click Here to jump to our Post discussing key issues relating to burdens of proof.
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| Excluding Hearsay Essential |
Having done your best to anticipate the witnesses and evidence to be presented, perhaps the most critical issue is: what to do about hearsay? Hearsay (statements or writings made by people such as co-workers, which the employer relied upon to fire you, and which the employer will rely upon at the Hearing to prove willful misconduct), is largely inadmissible at Unemployment Hearings unless the person who initially made/wrote the statement is present, provided that you object when it is presented.
Of course, the trick is knowing when to object to what, a difficult task for the average layperson experiencing the stress of an Unemployment Hearing.
Many cases are won or lost based upon the ability to get in or keep out evidence. In the overwhelming majority of cases, you get only one shot at winning your unemployment appeal (at the Unemployment Hearing), so being prepared for your Hearing is essential.
You Get Only One Single Unemployment Hearing in Pennsylvania - You do NOT Get a New Hearing if You Appeal a Referee Decision
I regularly receive communications from employees asking if I can help them appeal after they receive a referee decision determining that there claim had been denied. I am often told that the referee let in evidence that should have been excluded or was unfair, or that they were denied the right to introduce evidence or, simply, that they were not prepared for the hearing to go the way that it did. I am then asked if I can represent than on their appeal, thinking that they will get a new chance to introduce evidence or testimony, or to exclude evidence or testimony. In other words, many folks believe that they get a second hearing if the first one before the referee does not go well.
That is not the case. You get one bite at the apple. The evidence and testimony that is collected at the referee hearing will be the only evidence and testimony considered by the Pennsylvania Unemployment Compensation Board of Review. Further, if the claimant permitted evidence into the record that could have been excluded if objected to, any such objections are deemed waived on appeal and the offensive evidence will be considered and relied upon on appeal.
Unemployment benefits can be worth thousands of dollars to folks during a very important time of their lives. It is wise to seek counsel for a referee hearing, because employers have handled hundreds of them and and therefore have a distinct advantage over the ordinary employee, who may have never been in such a hearing before, and does not understand the rules of evidence or the proceedings in general.
Philadelphia Area Unemployment Attorneys Representing Employees
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| Call 610-647-5027 |
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