John Gallagher's June 2014 Video Provides Overview of How Willful Misconduct is Defined Under Pennsylvania Law, and What Happens at an Unemployment Hearing Before a Referee
Pennsylvania Unemployment Appeal Lawyer Representing Employees With Referee hearings in Norristown, Bristol, Springfield, Malvern and Phiadelphia
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.
|This is 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 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.
Here is another video, shot in 20910, that also discusses "willful misconduct." It may help you gain an even fuller understanding of what willful misconduct is, and how it is proved.
Is My Alleged Poor Performance 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).
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 Hearing before an Unemployment Referee (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.
Here is our 2010 video discussing what happens at an Unemployment Referee Hearing in Pennsylvania:
How to Stop Hearsay at a Pennsylvania Unemployment Hearing
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.
Philadelphia Unemployment Attorney
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