Willful Misconduct: Denial Of Benefits Despite Lack Of Intent, DD 12/07

Defense Digest

"Willful misconduct" under the Unemployment Compensation Law, 43 Pa. Stat. Ann. § 802(e), is defined as: (1) an act of wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of standards of behavior which the employer has a right to expect of an employee; and (4) negligence indicating an intentional disregard of the employer's interest or the employee's duties and obligations to the employer. Altimus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (1996).

The employer carries the burden of proof in establishing "willful misconduct" in violation of a work place rule. Bishop Carroll High School v. UCBR, 125 Pa. Commw. 302, 557 A.2d 1141 (1989). The employer must establish an existence of the rule and its reasonableness and that the employee was aware of its existence. The employer must also establish that the employee actually violated the rule. Arbster v. UCBR, 690 A.2d 805 (Pa. Commw. 1997).

Once the employer meets its burden, the burden shifts to the employee to prove that the rule was "unreasonable or that there was good cause of violating it." Gillins v. UCBR, 534 Pa. 590, 633 A.2d 1150 (1993). Alternatively, an employee must show the rule was not enforced uniformly. Woodson v. UCBR, 461 Pa. 439, 336 A.2d 867 (1975).

A deliberate violation of an employer's rules constitutes "willful misconduct." Krimmel v. UCBR, 65 Pa. Commw. 134, 136, 442 A.2d 15, 16 (1982)(citing Lipfert v. UCBR, 46 Pa. Commw. 206, 406 A.2d 251 (1979)). In Krimmel, the claimant was terminated from employment following the use of obscene language and gestures towards her supervisors, which was in violation of the employer's established procedures. The Commonwealth Court found that the claimant's actions rose of the level of "willful misconduct."

Furthermore, unprovoked abusive or offensive language may constitute "willful misconduct." Brandt v. UCBR, 537 Pa. 267, 272, 643 A.2d 78, 80 (1994) (citing Isabella v. UCBR, 59 Pa. Commw. 298, 301-02, 429 A.2d 1220, 1222 (1981). In Brandt, the claimant was terminated after an investigation by the employer into verbal abuse and intimidation, which were in violation of the employer's handbook. The claimant was denied benefits.

Most recently, in Williams v. UCBR, 2007 Pa. Commw. LEXIS 308, *3 (June 8, 2007), the claimant used the term "zebra" to describe biracial children, including her own children. After complaints by fellow employees, the employer conducted an investigation and determined the use of the term "zebra" to be a violation of the employer's harassment policy, and the employee was terminated. The claimant argued that she had good cause for violating the rule, as the term "zebra" was not offensive and she did not intend it to be offensive. The court found that it was irrelevant whether the claimant intended the term to be offensive. Therefore, the Commonwealth Court affirmed the decision of the Referee and the Unemployment Compensation Board of Review and denied the claimant benefits on the basis of willful misconduct under § 402(e).

In its analysis, the court found the employer presented evidence of its harassment policy that prohibited the use of racial nicknames, slurs or labels and that the claimant was aware of the policy. The claimant testified at the Referee Hearing that she intended to use the term "zebra" to describe biracial children. The court found this to be an intentional violation of the employer's harassment policy. Despite the claimant's testimony that she did not intend the term to be offensive, the Commonwealth Court held it is irrelevant whether or not the claimant intended the term to be offensive to rise to the level of willful misconduct.

This further interpretation of the willful misconduct standard will assist employers in negating claimants' arguments of lack of intent, as it relates to words spoken in violation of employment policies. Therefore, when an employer is confronted with an unemployment compensation claim under § 402(e) of the Unemployment Compensation Law arising from the termination of an employee for violation of the employer's policy manual relating to spoken words, i.e. policies related to harassment, threats to employees and employers, work stoppages, it is necessary for the employer to argue the claimant's intent at the time the words were spoken is irrelevant.

*Peggy is an associate in the firm's Harrisburg, Pennsylvania, office and can be reached at (717) 651-3517 or pmmorcom@mdwcg.com.