Category Archives: Unemployment

Employee Eligible for Unemployment Benefits When Policy Violation Protects Patient Care

As a Pennsylvania unemployment compensation attorney who represents employees at unemployment compensation hearings where the employee is appealing a denial of benefits, I have observed that many employers do not understand that the fact that the employer may have a legitimate reason for terminating an employee, does not mean that the employee will be denied the right to collect unemployment compensation benefits. Employers frequently confuse the right to terminate an employee with the employee’s right to collect unemployment compensation benefits. Pennsylvania unemployment compensation law recognizes that while Pennsylvania generally follows the principle of employment at will, and that the employer has the right to terminate employee for any non-discriminatory reason, including a violation of the employer’s policy, that right does not preclude the employee from collecting unemployment compensation benefits unless the employee engages in willful misconduct at the workplace.

Pennsylvania unemployment law provides that an employee is ineligible for unemployment compensation benefits when the employee’s termination is due to willful misconduct connected with the employee’s work. Pennsylvania courts have defined “willful misconduct” as a willful disregard for the employer’s interests; a deliberate violation of the employer’s rules; disregard for standards of behavior than an employer can expect; or negligence that reflects an intentional disregard of the interest of the employer or an employee’s duties to an employer. The employer has the burden of proving willful misconduct. An employer alleging willful misconduct must show that the employee violated the employer’s rules or policies and the employee’s actions were intentional or deliberate. Once the employer meets this burden, the burden then shifts to the employee to show good cause for a rule or policy violation.

The Commonwealth Court’s recent decision in Washington Health Systems Greene v. Unemployment Compensation Board of Review (Cmwlth Ct. Pa. September 21, 2016) demonstrates that an employee may be entitled to benefits even when a policy violation occurs. The employee, an emergency department registered nurse, was involved in the treatment of a patient at the hospital when the patient’s companion was also present in the emergency room. The employee was outside the treatment room gathering information and recording it on a computer while the companion was pacing outside the treatment room, loudly proclaiming that he wanted another nurse to be removed from the treatment room. The employee testified that the companion loudly threatened to “knock his teeth in” and made another threat. The employee testified that he threatened to call hospital security and he had to speak loudly to the companion to speak over him. The employee was subsequently terminated for violating the employer’s policies which prohibit disrespectful or unprofessional behavior at the workplace, and for conduct detrimental to a patient’s care and use of profanity.

The Court concluded that the Unemployment Compensation Board was correct when it found that the Claimant employee was eligible for unemployment compensation benefits because of the patient’s emergency situation, the employee’s active participation in screening for care, and the employee’s proximity to the companion. Thus, under the circumstances it was not possible to conclude that the employee acted unreasonably by failing to immediately notify his supervisor of the threat, as the employer’s policy technically required. In addition, the record supported the fact that it was the companion, not the claimant, who acted unreasonably and disrupted the patient’s care and that the employee’s actions were reasonable under the circumstances.

There are many nuances in Pennsylvania unemployment compensation law. Many times, employees are successful when they retain an experienced Pennsylvania unemployment compensation benefits attorney to appeal a decision denying unemployment benefits. The attorney will prepare the employee for the Referee’s hearing and represent the employee at the unemployment compensation hearing. For more information about Pennsylvania unemployment compensation claims and Abramson Employment Law see

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Employees Terminated for Negligent Conduct are Entitled to Unemployment Compensation Benefits

There is frequent confusion amongst employers and employees concerning entitlement to unemployment compensation benefits. While an employee without an employment contract is considered an employee at will, who can be terminated for any reason or no reason at all unless the termination constitutes discrimination based on age, race, religion, sex, national origin, a disability, or violation of a federal or state law protecting employees, employees who are terminated for any reason are entitled to unemployment compensation benefits unless the employee engages in willful misconduct at the workplace.

Section 402(e) of the Unemployment Compensation Law provides that employees who engage in willful misconduct are not entitled to unemployment compensation benefits. The burden of establishing willful misconduct is on the employer. Willful misconduct is conduct that evidences: (1) the wanton and willful disregard of the employer’s interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employee, or (4) negligence which manifests culpability, wrongful intent, evil design or intentional and substantial disregard for the employer’s interests or the employee’s duties and obligations. An employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature.

A recent Commonwealth Court decision, Clark v. Unemployment Compensation Board of Review (Commw. Court January 6, 2016), illustrates that negligent conduct in the workplace does not constitute willful misconduct. In Clark, the employee was employed by the Pennsylvania Liquor Control Board as a Liquor Store General Manager. The employee was suspended pending an investigation into his alleged violation of the employer’s return policy and eventually terminated. The employer’s stated reason for the termination was “processing a fraudulent return of merchandise.” The employer’s written policy regarding the handling of returned items provided that a customer returning merchandise must show the liquor store clerk a copy of the original receipt and if the customer wishes to keep the original receipt, the clerk must write the original receipt number on the return receipt, which the store retains for its records. When a customer returns an item without a receipt, the clerk must issue the refund as a gift card, rather than cash. Additionally, if an item priced over $50 is returned without a receipt, the return must be approved by the district manager. The employee processed a return of two bottles totaling $114 as a cash refund and did not collect an original receipt or obtain approval for the refund from his district manager.

In Clark, the employee testified that the customer had an original receipt for the two bottles of vodka, so he processed the return as a cash refund, the customer wanted to keep the original receipt, the employee forgot to write down the receipt number and he believed he put the return receipt in the office as required by store policy and that it must have been lost thereafter.

The Commonwealth Court found that the employee’s wrongdoing was failing to record the original receipt number and making a return of cash in excess of $50 without approval of the District Manager. Therefore, the Court determined that the issue was whether the employee’s departure from the employer’s directions on record keeping constitutes willful misconduct. The Court found that while the employee violated the employer’s return policy because he did not obtain the District Manager’s approval for a cash refund, there was no evidence the employee stole the money which was refunded and instead the evidence was that the employee was responsible for the lost return receipt not being maintained. As a consequence, the Court concluded that the employer had not shown that the employee’s conduct constituted willful misconduct. As such, the Court reversed the Unemployment Compensation Board and found that the employee was entitled to unemployment benefits because negligence does not result in the denial of unemployment commendation benefits.

Abramson Employment Law represents employees who are denied unemployment compensation benefits. For more information about Pennsylvania unemployment compensation claims and Abramson Employment Law see

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Employee Who Resigned Due to Increased Commuting Time is Awarded Unemployment Compensation Benefits

When an employee resigns from a job, an employee is only entitled to unemployment compensation benefits if there is a “necessitous and compelling reason” for resigning. This can be a difficult standard to meet and is very fact specific. A necessitous and compelling cause for voluntarily leaving employment is one that results from circumstances which produce pressure to terminate employment that is both real and substantial, and which would compel a reasonable person under the circumstances to act in the same manner.

In Intermediate Unit 1 v. Unemployment Compensation Board of Review, No. 161 C.D. 2015 (Pa. Commwlth. January 6, 2016), the Commonwealth Court of Pennsylvania found that a 66-mile increase in a part-time employee’s daily commute created a necessitous and compelling reason for resigning. The employee, who worked as a part-time warehouse foreperson, resigned from her position and filed for unemployment compensation benefits, claiming that she had no choice due to “transportation problems.” After the employee was already working for the employer, the employee’s place of employment changed to a new location causing a much longer daily commute. The employee testified that she proposed several solutions to resolve the transportation problems, including transferring to a new position closer to her home, working longer days to decrease the number of days she would be required to come to work, and receiving compensation from the employer to offset her travel costs. The employee also investigated the option of using public transportation, but discovered that public transportation was not available. The employer testified that it was unable to accommodate the request for a longer work day and was unable to increase compensation because it would not commensurate with the position.

In order to establish cause of a necessitous and compelling nature, an employee must establish that: (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) like circumstances would compel a reasonable person to act in the same manner; (3) the employee acted with ordinary common sense; and (4) the employee made a reasonable effort to preserve her employment. Pennsylvania courts have previously found that transportation problems may constitute a cause of a necessitous and compelling nature if the transportation issue is so serious and unreasonable as to present a virtually insurmountable problem and the employee demonstrates that he or she took reasonable steps to remedy or overcome the transportation problems prior to severing the employment relationship.

In Intermediate Unit 1, the Court found that there was no dispute that the relocation of the employee’s position increased her commute by a total of 66 miles per work day and the employee credibly testified that such an increase in her commute was not feasible considering the part-time nature of her employment and the employee attempted to remedy her problems, including attempting to find suitable public transportation and suggesting that the employer increase the number of hours she would work per day, but her efforts were unsuccessful. As a consequence, the Court found that the employee established that the additional commute would not have been financially feasible for the part-time job, thus, cause of a necessitous and compelling nature existed to voluntarily resign and the employee was entitled to receive unemployment compensation benefits.

Whenever an employee is considering resigning, prior to providing notice, it is critical that an employee carefully explore all reasonable alternatives to resolve the issue which is causing the potential need to resign and document those efforts with the employer. Then, if the situation is not resolved, the employee will be better able to meet the necessitous and compelling reason for resigning standard in order to be eligible for unemployment compensation benefits. Abramson Employment Law represents employees at unemployment compensation hearings. For more information on Pennsylvania unemployment compensation and Abramson Employment Law see

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Unemployment Compensation: Evidence Concerning Retaliation for Taking FMLA Leave is Admissible

The issues in an unemployment compensation hearing and an employment discrimination/retaliation case are often very similar. Many times employers contest an unemployment compensation claim when an employee intends to pursue an employment discrimination claim against the employer. Unemployment referees often do not permit testimony where the employee contests the employer’s stated reason by arguing that the real reason the employee was terminated was retaliation for engaging in protected activity, such as taking FMLA leave. In Brett v. Unemployment Compensation Board of Review, 2013 Pa. Commw. Unpub. LEXIS 266 (April 4, 2013), the Commonwealth Court made it clear this type of testimony is relevant. In Brett, the Unemployment Compensation Board of Review had affirmed a Referee’s determination that the Claimant was ineligible for benefits under 402(e) of the Unemployment Compensation Law, finding that the employee engaged in willful misconduct by falsifying time cards when the claimant left work earlier than the time marked on his time sheet without good cause. However, the Commonwealth Court remanded the case holding, “Even if the findings of fact establish that Claimant committed willful misconduct are supported by substantial evidence, Claimant is correct that the Board failed to address whether his termination was in retaliation for his use of leave pursuant to the FMLA.” Thus, in Brett, the Commonwealth Court vacated the Board’s decision and remanded the case for the Board to make findings and conclusions as whether the Claimant is eligible for unemployment compensation benefits in light of the contention that the employee was discharged in retaliation for utilizing FMLA leave. Now when an employee at a Referee’s hearing claims that the termination of employment was actually retaliation for engaging in protected activity such as taking FMLA leave, Brett provides a basis for arguing that testimony concerning retaliation for engaging in protected activity is relevant and admissible.

For more information on Pennsylvania unemployment compensation and Abramson Employment Law see

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Unemployment Compensation – Sideline Exception Applies – Claimant Entitled To Benefits Even Though Claimant Had No Earnings From Sideline Work Until After Termination From Full-Time Employment

Employees who are terminated from full-time employment often face difficult decisions. Employees who decide to start their own business (i.e. engage in self-employment) after being terminated are not entitled to unemployment benefits because Pennsylvania unemployment compensation law provides as soon as one makes any effort towards self-employment, there is no eligibility. This law stymies entrepreneurship and is always shocking to claimants who assume they actually have to make money before they are no longer entitled to unemployment compensation. An exception to this rule is the Sideline Exception, as long as a claimant can meet the 4-part test: (1) the self-employment began prior to the termination of the individual’s full-time employment; (2) the self-employment continued without substantial change after the termination; (3) the individual remained available for full-time employment; and (4) the self-employment was not the primary source of the individual’s livelihood.

While it’s always been understood that the Sideline-Exception applies if an employee performs the same work before and after termination from full time employment, Claimants and attorneys often do not understand the great breadth of the Sideline Exception. In Lello v. Unemploy. Comp. Bd., 2013 Pa. Commw. LEXIS 26 (January 22, 2013)(McCullough, J.), the court found that the fact that sideline activity before termination resulted in no earnings does not matter. In Lelo, after termination from full-time employment, the Claimant performed copy editing assignments as an independent contractor on a freelance basis for which he was paid while continuing to look for full-time work. Prior to termination from full-time employment, the claimant spent a few hours each week submitting album reviews and interviews for a music website, wrote articles for a music publication and informally contributed to entertainment websites operated by friends and acquaintances but he was never paid for any of the work.

In Lello, the Commonwealth Court reversed the Board of Review which had found Claimant was self-employed and denied unemployment benefits, relying in part on Rise v. Unemployment Compensation Board of Review, 35 A.3d 79 (Pa. Cmwlth. 2012), where the Court held that the claimant’s involvement in a sideline activity did not substantially change even when the claimant increased his hours and his earnings from the sideline work doubled. In Rise the court concluded that even though those changes were substantial, the claimant did not seek to expand his business, find new clients or engage in marketing activities, and only worked when he received a call from someone, the evidence established that the claimant’s sideline business activity did not substantially change. Thus, in Lallo, the court similarly concluded that it is not relevant if the sideline work resulted in no earnings before termination from full-time employment.

The moral of this story is clear. If a claimant has any evidence of performing any type of sideline work before termination from full-time employment, even if there were no earnings before the termination, or much more earnings after termination, do not rule out the possibility of collecting unemployment benefits. For more information about Pennsylvania Unemployment Compensation Claims and Abramson Employment Law see

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Unemployment – Employee Who Accepts Early Retirement Package Is Not Barred From Receiving Unemployment Compensation Benefits

In today’s world where layoffs are becoming common place and unemployment laws are increasingly more restrictive, a recent decision of the Supreme Court of Pennsylvania helps employees who accept early retirement. The Court held that an employee who accepts an employer’s early retirement package is not barred from receiving unemployment compensation benefits and the “voluntary layoff option” (“VOL”) provision in the Unemployment Compensation Law, 43 P.S. §802(b) applies to an “otherwise eligible claimant” who accepts an early retirement plan offered pursuant to an employer-initiated workforce reduction. In Diehl v. Unemployment Compensation Board of Review, 2012 Pa. LEXIS 3012 (Pa. 2012), the Supreme Court reversed a Commonwealth Court decision and held that the unemployment law does not preclude unemployment benefits to those who accept early retirement plans offered pursuant to employer-initiated workforce reductions. Over the past several years we have seen several clients elect early retirement benefits under operating under the assumption that they could then receive unemployment benefits and then clients have had to fight when they were initially turned down. In today’s environment the Diehl decision is a welcome decision in favor of employees.

For more information about Pennsylvania Unemployment Compensation Claims and Abramson Employment Law see

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