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Wednesday, March 3, 2010

Pennsylvania Unemployment Hearings - What Is Willful Misconduct, Anyway?



Pennsylvania Unemployment Appeal Lawyer With Offices in Paoli, Exton, King of Prussia, Plymouth Meeting,  Radnor and Philadelphia Gives Free Consultations for Pennsylvania Unemployment Claims

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
(Think: falsifying time card, stealing money, coming to work intoxicated, refusal to do work assigned by supervisor, surfing porn on the internet at work, stealing money from company, etc.), repeated violations of a work rule after warning (Think: repeated lateness or absence, using work equipment for personal matters during work hours after warning, etc.) or grossly negligent conduct by the employee (Think: having an accident with a company vehicle in which you are cited for speeding, running red light, etc., damaging company property through laziness or gross carelessness, sleeping on the job, etc.).

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.

In essence, willful misconduct is the intentional violation of a work rule after warning or, in the case of serious infractions (i.e. falsifying time card, theft, etc.) , a single violation of an established work rule.  Employees who truly have engaged in willful misconduct usually know that they have "done wrong."  From time to time, we see Unemployment Referees deny benefits on the grounds that a single mistake constitutes "negligence in such degree or recurrence as to manifest culpability... or show... substantial disregard of the employer's interests or of the employee's duties and obligations to the employer." These are the toughest cases to win, because the mistake is not intentional.

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 justify their termination by asserting that the employee engaged in willful misconduct.  This is what we refer to as a "pretextual firing."  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.

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. 

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.  

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…

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57 comments:

Mandi said...

It's pretty frustrating. I looked up the term "willfull misconduct" and found this page after receiving a letter from the PA Dept. of Labor stating I need to repay the UC I collected because even though I was terminated by my employer while I was in the hospital with pregnancy related complications, since I didn't qualify for FMLA I was considered guilty of absenteeism, thus ineligible for the benefits they had granted me. Grrrrr...

Anonymous said...

I want to file an appeal. I had hired someone to look after my daughter with a set schedule and once the summer came about she refused to work the hours. Never called out on the fourth of july weekend and she fell asleep while she was suppose to be working. I lost the appeal in Malvern. I want to fight this. Her mother is a politician in MEDIA Pennsylvania. She knew what to say. I went on Principle and lost. The decision came in the mail less then 48 hours after the hearing. Fishy????

Anonymous said...

I want to file an appeal. I had hired someone to look after my daughter with a set schedule and once the summer came about she refused to work the hours. Never called out on the fourth of july weekend and she fell asleep while she was suppose to be working. I lost the appeal in Malvern. I want to fight this. Her mother is a politician in MEDIA Pennsylvania

Employment Lawyers said...

Anonymous:

I am sorry that happened to you - it happens a lot to people that are not represented by counsel at Unemployment Hearings (employers cultivating evidence to win the case); getting a Referee's decision within 48 hours of the Hearing is not particularly unusual. Successfully appealing a Referee's decisions is very hard; the Board of Review considers only what was presented at the Hearing, and they usually back the Referees. In other words, you cannot add any "new evidence" on your appeal, and are "stuck" with what happened at the Hearing, even if it was all lies. Readers: Attorneys who understand Unemployment Hearings can help you defeat employers who know to "cultivate" evidence at the Hearings. we are trained to spot and expose lies....

paul said...

Hello I was terminated from my employment because had 3 vehicle accidents in a 4 yr period with company vehicle,was dug tested and no citations issued clean drug test is that willful misconduct?

Employment Lawyers said...

Paul:

This is a close case. It really depends upon the nature of the accidents, and of your job. I assume that driving was an essential part of your job. Let me say this: If you were not "at fault" for any of the accidents, you win. If you were at fault for all of the accidents, your probably lose. You will need extensive preparation to win, but you certainly can win, depending on all of the circumstances...

Anonymous said...

My co-worker was fired for stealing, however, she was falsely accused. She has witnesses who will attest to that. She was told she was responsible for bringing her own witnesses but is afraid they will get in trouble at work, as they are still working for her old employer. Can the UC Appeals Office issue Subpoenas?

Employment Lawyers said...
This comment has been removed by the author.
Employment Lawyers said...

Yes, Subpoenas may be issued by the Referee that will preside over the Hearing. Using the Search Key on my Blog, type in the word "Subpoena" for more information. However, you may find that you do not want to Subpoena anyone. Theft cases are among the hardest to prove for employers, due to rules of evidence, such as the rules pertaining to hearsay. Thanks for writing, and best of luck.

Anonymous said...

I was terminated at work ( worked in an estate agent) they told me that their business is not making enough money and unable to pay salary to people and asked me to stop coming to work.

After a week I called up there and asked about paymemt. They said I'll be paid for my remaining holidays plus days I worked in also 1 month salary.But they haven't paid 1 month notice salary. When I called up and they told me that it was misconduct dismissal , so I do not need to be paid for notice period ( a month salary). I asked for what they meant, they mentioned that I didn't do my work properly. I was not be warned, so how can I get a chance to recorrect it? they did not give my payslips for 3 months. I asked for it no response.

Please give me an advice for this problem.

Employment Lawyers said...
This comment has been removed by the author.
Employment Lawyers said...

Anonymous real Estate employee:

Seems like a pretextual reason is being offered in order to 1) win your UC claim; and, 2) avoid paying you what you are owed. You should consider hiring counsel. My practice in cases is like this is to lay low until the UC Hearing, then pounce. Win the Hearing, then the payment of your money should follow (or else!). If a lawyer calls them now asking for your money, they will then hire their own lawyer and winning your UC Hearing, and your wage claim, will be harder. Patience is key here. Using the Search Key on my Blog, plug in "WPCL" and you will get some more insight on your wage claim.

Anonymous said...

i was terminated for hanging up calls in a call center. my defense is that it wasnt premedidated and was result of ongoing stress. i receive a willfull misconduct determination and was denied benifits. do you think that defense will win an appeal???thanks

Employment Lawyers said...

To: Hanging up on callers:

Hard to say on that one. It seems to me, though, that if you admit to intentionally hanging up on callers, you will be denied benefits.

Anonymous said...

i worked at amazon.com and they are sticklers for being back on time for break and i was 6 minutes late for break and i walked thru the metal detector "too fast" and i ignored the to walk all the way around to the back of the line. and then the guard (allied barton) came in the break room and grabbed my shoulder and tried to snatch my badge off my neck. Will i lose my case? also the guard who is supposed to have a no physical contact policy is still employed there even after formal complaints from other employees were filed

Anonymous said...

does alleged insubordination by an employee give reason to deny UC benefits?

Employment Lawyers said...

Insubordination, if proven, is a basis for denial of benefits on the grounds of willful misconduct. I seldom see true cases of insubordination. What I typically see are situations where an employee who is already in a disfavored status with he company, i.e. has been targeted for termination, is accused of some sort of insubordinate act for the exprfess purpose of denying that employee's right to UC Benefits. Insubordination cases are very tricky for employees, and hard to win. You definitely want to consider hiring counsel for any future UC Hearing.

Anonymous said...

I was fired for doing homework at work. They claimed it was the same as theft, because of their time & resources (I used their computer).
I took care of all my work responsibilities and the only thing i read in the work policy is that theft of any kind will be grounds for immediate termination, at the time I did not think homework was considered theft. I haven't received any prior warnings or guidelines on not doing homework, will I qualify for unemployment?

Anonymous said...

I was fired for doing homework at work. They claimed it was the same as theft, because of their time & resources (I used their computer).
I took care of all my work responsibilities and the only thing i read in the work policy is that theft of any kind will be grounds for immediate termination, at the time I did not think homework was considered theft. I haven't received any prior warnings or guidelines on not doing homework, will I qualify for unemployment?

Anonymous said...

I was fired from a medical group because a patient fell off the scale and was injured. I was helping the patient off the scale and turned to get my computer because the patient said he was alright. The patient was not using his cane that he brought with him and also the office did not have sufficient handicap railings. Everything I was ever taught since I started working there was do not try and catch a patient falling because you will injure yourself. Can this be deemed willful misconduct.

Anonymous said...

I live in PA and worked for a NJ employer and their employment application asked if ever plead guilty, no contest or convicted of a crime. I told them of a 1997 NJ felony that I was getting expunged for mortgage licensing purposes and they wnted me to get fingerprinted to complete process and said so long as what I was getting expunged was on my fingerprints it would be okay but I was fired over phone by HR Dept as they said they got report and had 4 other arrests (one was from 1978 and dismissed and 2 from 1987 and dismissed) and one another guilty pleas which was a 1987 NJ disorderly person offense and was a small fine that Englewood NJ court said was offense and not crime. I was denied benefits and want to appeal as they only asked about crimes and not crimes and offenses and arrests as other employer applications asked and i answered theirs truthfully and did not wilfully intend tp mislead them and I was employed 12 days short of a year with positive employer reviews

navynurse90 said...

I was fired from a job as an RN because a fellow RN (works with me) asked me how I was because I was assaulted at work. (mental health unit) She asked me on FaceBook. I responded by saying a patient's first name and last initial just saying that he attacked a security guard, Nothing else. They said that this was a Hipaa Violation (which it is not according to Hipaa) They then said that I violated their confidentiality policy. Their definitions and by laws say staff will refrain fron using a patient's "complete" name. I actually have all the policies in my posession. I used my computer at home on my own time. Nowhere on my page does it say where I work. They do not have a social network policy. Could something like this be won at the UC hearing?

JB said...

I am being forced to resign because up to this point I have been allowed to bring my kids with me to work over the past year. All of a sudden I am no longer allowed to bring them, but other employees are allowed to bring their kids. I have no other means of care for my children and cannot afford to pay for care. Are they allowed to do this. Would I be denied benefits? I am also being blamed for not collecting fees ($2000) for registrations that I was told I didn't need to attend.

Anonymous said...

I was discharged from my job for going out the night before, having a hangover. I still had alcohol in my system in the morning. I was sent and did not refuse alcohol testing. I had a .044 BAC. I was sent home, fired, no suspension, no warning. I found out other employees have been given suspensions. I was told to leave immediately. My emergency contact was not notified and I was made to drive knowingly with alcohol in my system. Currently appeal to unemployment. I also feel I was discriminated against as I was the only woman in my department. Kind of a "its okay for one, but not the other", which happened in many instances, i was always treated unfairly.

Anonymous said...

hi i was terminated from my job after i have been there for 3 years because i tried to better my self with a manager position and when i did the district manager said my writen aplication criminal back round did not match cause the dates were different it was an honest mistake and didnt know...do you think i will win? thank you

Anonymous said...

hello

Employment Lawyers said...

Sorry, I do not provide specific advice on specific questions on this Blog because the law is very fact specific....

Anonymous said...

I was terminated from my special education teaching job (I was emergency certified) for not completing a course by the deadline, subsequently denied UC benefits, and lost at my unemployment hearing. However, even if I had completed the course, based on the PA Dept of Education's guideline for Emergency Certification that the school district has to prove hardship finding a qualified certified teacher, my school district couldn't prove hardship; they had an overabundance of qualified certified teaching applicants. I've since appealed the UCRB's ruling and am awaiting a hearing date now. I can't afford an attorney, but also don't want to go into this hearing sounding foolish. Do you have any thoughts???

Employment Lawyers said...

Anonymous Special Ed teacher: I am sorry, I do not provide specific advice on this Blog.

Anonymous said...

Is there a statute of limitation regarding how long the PA government can take to accuse and demand Unemployment Compensation over payment?

Anonymous said...

I was told I was laidoff from work by my Boss. He said that they decided that they wanted to go a different way.. I was never told that I did any wrong. I was never spoken to about any problems and have no idea what they are calling willfull misconduct. I worked for a week past the date they stated i did willfull misconduct.. General Mngr specifically told me that I was LAIDOFF ..

cb said...

I was terminated for arguing with another co-worker. On my Notice of Determination for UE They stated that the Company has a zero tolerance policy for arguing, is there even a chance a appeal to win this. I never signed anything with this company stating this. Also, I was employed through a temp agency for this job. Any help would be greatly appreciated.

cb said...

I was terminated from my job for having a VERBAL argument with a fellow worker. UE denied my claim, because they said Company had a ZERO TOLERANCE for this. I never signed anything regarding that. Arguing is a daily accurance at every job I have had. I have filed the appeal and waiting for date. I feel that during this RED TAPE hearing it's all going to based on HEAR SAY. IS there any possible chance of beating this or am I wasting my time?

Anonymous said...

I was terminated from my position because of an employee alleging they heard me curse at the nurses station. I do not recall saying it and have 3 witnesses that didn't hear either. Could this be denied UC benefits?

Nicky said...

I'm waiting on an appeal date but have a few ?'s. Need some legal advice. Is that something you can help me with? My case is regarding "willful misconduct"

Anonymous said...

I work at a child care and am having an affair with one of my child's parents. It is very discrete. Does this rise to the criteria of 'willful misconduct'?

Zach said...

I was recently fired because my employer said i was "maliciously encroaching upon the rights or interfering with the efforts of other employees" however i was only doing what i was told by correcting an error and turning it into my supervisor. we had a new guy start was only there for 5 months so mistakes do happen since they are learning the job and the 1000's of product we have. i turned in 3 papers with in a week he made errors on, HOWEVER they were only off by 1 piece here or there. keep in mind that because i am double checking this work BEFORE it leaves my company, it prevents errors in which it would cost our company money. now when these papers are handed in, it takes an abundance of errors for anything to ever be said and when it is said its less then even a slap on the wrist. its more of hey you did this just becareful. i was told by my boss to do this so they had record if anything ever came back. now the person who messed up said that he did not make mistakes and said i was picking on him. so they fired me for willful misconduct telling me they had no choice? there are papers in the office showing that things this person sent out with out being checked or touched by anyone had return 4 errors with in 2 months. am i seriously in the wrong here or should i indeed have gotten denied by benefits?

kawaiijamaican said...

i was terminated for "being rude" to a customer who clearly in front of other coworkers and managers when clearly she randomly wanted to fight with somebody, my response of laughter to her comments got me fired because she was a "mystery shopper" and even waited for me so she could attempted to hit me with her car was my laughter fall under just cause of termination and or misconduct?

Anonymous said...

I was terminated due to production mistakes. I didn't have any problems until i was moved to a different position. I just wasn't catching on. The employer is calling it misconduct. Is this worth appealing?

Employment Lawyers said...

Anonymous: production mistakes sounds like alleged poor performance and certainly appeal. In the appeal, just say "I disagree with the determination" and you will get a hearing. Poor performance is not willful misconduct under PA UC law.

Employment Lawyers said...

K: it sounds like a winnable unemployment case but you do not have a potential wrongful termination case. See my Post on At Will Employment via the Search key on my Bog.

Anonymous said...

I was wrongfully accused of being unprofessional in my handling of another Dr's office in a phone conversation. My boss called me into his office and proceeded to tell me this and his words were "I don't want to have to fire you so I am laying you off for a few weeks and we will go from there." I have now been denied unemployment as he stated I have been discharged for willfull misconduct. I was never informed by my former employer that I was discharged. I am scheduled to go to an appeal next week and I want to know if I have any chance of winning this.

Anonymous said...

I was discharge because the company said I did an no call no show. But that was false information because I gave the manager a call 24 hours in advanced to infor her what was going on and that I may not be coming in the next day but if I get out of court earlier enough I will give her a call. Also told her that's why I was giving her a call 24 in advanced just in case I didn't call her because I was going to be busy because my car got towed to I had to report the be t day to court. The manger said it was okay. So the day that I went in she was upset and consider my attpentence a no call no show. Personally I think it was not fair because I did call 24 hrs in advanced and informed her Wat was going on. Not to mention I had plenty of personal time and vacation time.

Anonymous said...

Denied and extension, I filed an appeal to get an extension and was called back by a rep from unemployment office stating my case was not good. Still awaiting response letter.
I was denied based on earnings. My earnings for the week of 9/24/11 thru 9/30/11 ( 3rd quarter) were applied to 4th quarter as they go by the date the paycheck was submitted to PAUnemp. If the earnings were applied to 3rd quarter (when I actually earned them) then I would be eligible. Do I have any chance to win a hearing?

Anonymous said...

I filed an appeal received a call saying my case was not good. I'm being denied based on earnings. My earnings for the week of 9/24/11 thru 9/30/11 (3rd quarter) were applied to 4th quarter which makes me ineligible. Rep stated that is the common practice as the state uses the date the employer filed the paycheck to apply funds. If the earnings are applied to 3rd quarter (when i actually earned them) then I qualify. Do I have any legal footing?

Anonymous said...

I have an appeal next week. My former employer said I took part in "willful misconduct." I completed a fraud check incorrectly on a loan.

I was not at the conference call explaining proper policy to complete the fraud check. I was never given any notes or given a tutorial by my manager on how to complete.

I have no evidence to bring to my hearing other than my word.

Should I be worried?

Anonymous said...

I was terminated from my operations manager job by the vice president saying we are letting you go pack your stuff.said we are going in another direction and i was a good employee. Now they are fighting my unemployment stating willfull misconduct. Can they do this and am i correct to think the vice president must be present at hearing or it will just be hearsay?

Ed said...

I was terminated from my employment. I left people in a door 5 minutes before they were needed to get to their posts. I was never trained properly to begin with because of being short-handed due to people being out on disability. The manager was negligent at opening the door and people were screaming to be let in. I opened the door, but left it ajar. they said it was a rule that I violated, but I never knew of the rule. I knew I made a mistake, but there was nothing willful on my part except to get these people in so they wouldn't be late. There were no consequences and the store was opened in 4 minutes. this happened 5 minutes before the store would have been opened. they said that I had not shown good cause for violating the rule. I was looking out for my co-workers behalf. Is this worth fighting or would it be a waste of time?

Anonymous said...

My boyfriend was fired from his job as a bank teller for making an honest mistake. He had to use 2 registers at his station on a busy day and accidently put a roll of quarters in one register drawer that was supposed to go in the other. It was a simple error that he didn't mean to do. No harm was done, no money missing, just a roll of quarters was put in the wrong drawer. He's never had any prior issues or missteps ever! As if it isn't harsh enough that he was fired for that they denied his unemployment benefits for violating a known policy. It was completely unintentional! He's filing an appeal today, what should he expect?

Anonymous said...

The company was fighting my UC bene stating my discharge was from willful misconduct. In the hearing I asked the super int, if he felt I made the mistake out of willful misconduct, he replied No. How potent is that in my favor?

Anonymous said...

I was terminated from my employer, for willful misconduct. I had been late on several occasions. I was late either due to traffic/ traffic accidents, or for health issues. I have been very sick over the past year. I told my immediate manager of my illnes.However during the hearing the employer claimed I never told them what was going on. I don't have a diagnoses yet but I have doctors notes and test details results, to show I was seeking medical attention, and my manager was aware of the above. They also said I didn't give ample time to use my PTO time. The referee sided with the employer, but when the hearing was over the referee and the employer had a conversation, as I was leaving the room. Is it worth my time and effort to keep fighting this appeal??

Me said...

I got fired for failing drug test. Was on my job 2yrs. Will i get unemployment?

Jay B. said...

I have a questionable situation.

I was laid off October 2, 2012 because as a car salesman my numbers were below my quota for the months of August and September 2012. I was told this by my floor and Internet Managers on that day. I worked there from Feb '12 - Oct '12. Approximately 7 1/2 weeks. I filed for unemployment directly thereafter. I was approved for my unemployment compensation with no issues.

Just recently as of 28 March, 2013 I got a letter in the mail from the UC office in the Pittsburgh area that my last job stated I was discharged for "Willful Misconduct".

Does this happen usually where an employer signs off on my initial filing for unemployment compensation then later states they fired the employee for "willful misconduct".

Within the letter it stated to fill out the questionaire stating my reasons for being laid off which I have done.

At the moment I'm not worried because I know I was not fired for what was stated, but I'm not sure where this is headed, but if anyone has any input it would be greatly appreciated.

Thank you!

Employment Lawyers said...

Jay B.:

Employers do not approve unemployment; the UC Service Center does, and then, as needed, referees do, and so on. So, what happened was that you applied, and then your employer said you were fired for doing something wrong, and then you received a Notice of Determination ("NOD") and, if you appeal that (say only "I disagree with the Determination" as your reason for appeal), then you will get a Referee Hearing. I have seen people get benefits for 6 months only to then receive an NOD denying their claim; there is no real deadline for fighting a claim, only for appealing from an NOD (15 days).

Regards,

John A. Gallagher

Employment Lawyers said...

Re Drug Test:

If an employee fails to take a drug test administered in accordance with company policy, or refuses to take one, then the employee will almost always be refused UC benefits in PA.

Regards,

John A. Gallagher

Anonymous said...

I was terminated because, I could not work the change of hrs that was presented to me. I received notice that its was because of wilfull misconduct.Is th as that any cause?

Anonymous said...

My UC claim has been in judication for two months now. I just recently went thru the last step which is verification of no willful misconduct. I was terminated due to absenteeism, however I received a verbal 4 months prior to my termination. I experienced a emergency which required me to call out. The next day the company had me work a full day then fired me at the end of the day. Will this be considered willful misconduct?