Pennsylvania Unemployment Hearings - What Is Willful Misconduct, Anyway?

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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. Gallagheris an employment lawyer who represents employees in Pennsylvania.

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