Opinion
No. 1 C.D. 2012
01-09-2013
Northeast Towing Services, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Northeast Towing Services (Employer) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) granting benefits to Thomas Vitale (Claimant). In doing so, the Board reversed the Referee's determination that Claimant had violated Employer's drug policy, which constituted willful misconduct and rendered him ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). The Board determined that Employer did not provide sufficient evidence that Claimant's off-duty possession of marijuana and drug paraphernalia violated Employer's drug policy. Employer contends that the Board erred because Claimant's conduct impaired its business relationship with the Pennsylvania State Police. Discerning no merit to this argument, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, that "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant worked approximately 15 hours per week as a tow-truck driver for Employer. He was employed from March 2008 through December 12, 2010, when he was fired after being arrested on December 11th on drug-related charges. Claimant then applied for unemployment benefits. In response to Claimant's application, Employer stated that Claimant was fired because he violated the company drug policy and because the State Police, an important customer of Employer, did not permit any person with a felony conviction to offer towing services to the State Police. The UC Service Center granted benefits to Claimant, finding that Employer did not establish proof of a violation of its work rule.
Employer appealed, and a hearing was held before the Referee. At the hearing, Brandon Rosencranse, Employer's owner, testified that on December 12ththe State Police notified him that Claimant had been arrested on drug charges. Rosencranse claimed Claimant's conduct was a violation of Employer's drug policy, even though Claimant had not been working at the time of his arrest. A copy of Employer's drug policy, signed by Claimant, was entered into evidence. It states in full:
This company promotes a safe working environment [a]nd will not tolerate any employee using or abusing alcohol or drugs while involved in any safety sensitive function with this company. If any employee violates this policy, it will be the determination of the owner, Branden Rosencranse, as to the steps taken to correct this issue. Steps taken can range from a reprimand to the termination of the employees employment
with this company. By signing this policy, you as the employee are accepting any determination made by the owner of this company for disciplinary actions taken. This company also has a no smoking policy for all company owned vehicles.Certified Record, Item No. 3 (C.R. ___), UC Service Center Exhibit 9. Rosencranse testified that Claimant had admitted to possessing drugs at the time of his arrest and that Claimant's continued employment would interfere with Employer's towing contract with the State Police.
Claimant testified that he never used drugs while working and he never would. He asked Employer not to fire him and offered to pay for weekly drug testing for a full year. Claimant stated that he has worked full-time with another employer for the past 13 years and is a good employee.
The Referee found that Claimant violated Employer's drug policy and denied benefits. Claimant appealed to the Board, which ordered a remand for the purpose of determining the outcome of Claimant's criminal charges. It also directed the Referee to consider the matter under Section 3 of the Law, which sets forth the several purposes of the Law.
Section 3 provides:
Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the Commonwealth. Involuntary unemployment and its resulting burden of indigency falls with crushing force upon the unemployed worker, and ultimately upon the Commonwealth and its political subdivisions in the form of poor relief assistance. Security against unemployment and the spread of indigency can best be provided by the systematic setting aside of financial reserves to be used as compensation for loss of wages by employes during periods when they become unemployed through no fault of their own. The principle of the accumulation of financial reserves, the sharing of risks, and the payment of compensation with respect to unemployment meets the need of protection against the hazards of unemployment and indigency. The Legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this Commonwealth require the exercise of the police powers of the Commonwealth in the enactment of this act for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.43 P.S. § 752 (emphasis added).
At the remand hearing, Claimant did not appear, and Rosencranse was the sole witness. Rosencranse presented Claimant's criminal record. It established that on July 7, 2011, Claimant pleaded guilty to the misdemeanor criminal offenses of possession of drug paraphernalia and possession of a small amount of marijuana as a result of the December 11, 2010, arrest. Rosencranse testified that the State Police would not contract with him for towing "if we have a convicted felon working for us." Notes of Testimony, September 13, 2011, at 3; Reproduced Record at 28a. He also testified that he cannot employ someone who operates a vehicle under the influence of drugs.
The Board found that Employer's drug policy was irrelevant because Claimant's conduct had occurred off-duty. It also found that the State Police contract prohibited employing drivers convicted of a felony, and Claimant had not been convicted of a felony. Accordingly, Employer did not establish that Claimant's conviction interfered with his ability to tow vehicles for the State Police. Drawing on Section 3 of the Law, which sets forth the purposes of the unemployment compensation system, the Board held that Claimant's off-duty conduct did not affect his ability to do work for Employer. The Board reversed the Referee.
Employer petitions for this Court's review, raising two issues. First, Employer argues that Claimant's discharge was directly connected with his work because he violated Employer's drug policy, thereby placing Employer's business relationship with the State Police in jeopardy. Second, Employer contends that Claimant's conduct reflects on his ability to perform his duties based on the same reasons, i.e., because he was aware of Employer's drug policy and the importance of the State Police to Employer's business. Employer argues, further, that Claimant cannot do his job because his motor vehicle license would have been suspended following his conviction for possession of marijuana.
Our review is limited to determining whether constitutional rights were violated, errors of law committed or whether the findings of fact are supported by the evidence. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685, 691 n.4 (Pa. Cmwlth. 2003).
We begin with a review of the law on willful misconduct under Section 402(e) of the Law, as well as the declaration of public policy in Section 3 of the Law. Generally, Section 402(e) applies to work-related misconduct, which, while not specifically defined, has been construed as meaning the following:
While Section 402(e) primarily encompasses on-duty misconduct, off-duty conduct can be found to be work-connected. For example, in Nevel v. Unemployment Compensation Board of Review, 377 A.2d 1045 (Pa. Cmlth. 1977), a stock clerk for the Pennsylvania Liquor Control Board transported liquor from New York to Pennsylvania in violation of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 - 10-1001. Even though the conduct occurred while off-duty, this Court found the conduct was work-connected because an employer may reasonably expect its employees to obey laws its employer has a duty to enforce.
(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; or
(4) negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer.Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1996) (footnote omitted).
It is the employer's burden to establish that a claimant's conduct constituted willful misconduct. Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 A.2d 1286, 1288 (Pa. Cmwlth. 2003). Where, as here, the willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Bishop Carroll High School v. Unemployment Compensation Board of Review, 557 A.2d 1141, 1143 (Pa. Cmwlth. 1989). Once employer meets this burden, the burden shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule. Conemaugh Memorial Medical Center, 814 A.2d at 1288.
Here, the Board invoked Section 3 of the Law, which has been construed "to disqualify claimant[s] for non-work-related misconduct which is inconsistent with acceptable standards of behavior and which directly affects the claimant's ability to perform his assigned duties." Burger v. Unemployment Compensation Board of Review of Review, 569 Pa. 139, 144, 801 A.2d 487, 491 (2002) (quoting Southeastern Pennsylvania Transportation Authority v. Unemployment Compensation Board of Review, 506 A.2d 974, 977 (Pa. Cmwlth. 1986)) (emphasis in original). It is "the employer [who] bears the burden of showing that the alleged misconduct directly affects an employee's ability to perform his or her assigned duties." Maskerines v. Unemployment Compensation Board of Review, 13 A.3d 553, 556-57 (Pa. Cmwlth. 2011).
Employer argues that Claimant's conduct violated its drug policy and impaired its business relationship with the State Police. In response, the Board points to the Pennsylvania Supreme Court's decision in Burger, which held that off-the-job drug use does not by itself constitute willful misconduct. The Board argues that Employer had the burden of proof in this case and failed to meet it.
In Burger, a nurses' aide working at a nursing home admitted to using marijuana every evening after work. However, she claimed not to use marijuana or other illegal substances directly before reporting to work or while on the job. Nonetheless, this Court denied the claimant benefits, finding she might attempt to work while impaired and pose a safety concern. The Supreme Court reversed, noting there were no findings in the record to support such a determination. It explained willful misconduct could not be established pursuant to Section 402(e) of the Law unless it extended to on-the-job performance. Since there was no evidence of this, willful misconduct was not established. Further, the employer's drug policy only required employees not to report to work under the influence of alcohol or illegal drugs. Thus, no policy violation was established. Because the Board had not considered the claim under Section 3 of the Law, assertion of ineligibility under that section was waived. --------
Recently, in Maskerines, this Court held that when a claimant is discharged for off-the-job conduct that violates a work rule, willful misconduct is established pursuant to Section 402(e) of the Law. Employer does not need to show that the off-the-job conduct directly affected the claimant's ability to perform his job under Section 3 of the Law. Notably, the employer's policy in Maskerines specifically required employees to abstain from the use or possession of illegal substances at all times, whether or not on the job. Thus, the claimant's off-duty marijuana possession directly violated the employer's work rule.
By contrast, here, Employer's drug policy prohibits using drugs "while involved in any safety sensitive function with this company." C.R. 3, UC Service Center Exhibit 9. There is no claim nor any evidence that Claimant used drugs on company time. Thus, Employer failed to establish a violation of its drug policy.
As to Employer's business relationship with the State Police, the Board notes that Employer only claimed Claimant's conduct affected its business because the State Police did not permit Employer to hire convicted felons. Claimant has not been convicted of a felony, and thus there was no showing that Claimant's conduct harmed Employer's business. We agree with the Board. Rosencranse's testimony established that the State Police prohibited the hiring of convicted felons, not those convicted of misdemeanors.
In Employer's second issue, it contends that Claimant should have known his conduct would affect his employment status. Again, Employer argues on the basis of its drug policy and the State Police contract. For the reasons already explained, we reject this claim.
Alternatively, Employer argues that as a result of his conviction, Claimant has lost his driver's license and, thus, cannot do his job. We reject this argument for two reasons. First, Claimant could not lose his license until he was convicted, and the conviction occurred seven months after he was fired. Second, Employer did not raise this issue at any stage of the proceedings below. Issues not raised before the Referee or the Board are waived for purposes of appeal to this Court. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011). Indeed, the licensing issue was not even raised in Employer's petition for review to this Court.
Because Employer did not establish that Claimant's conduct violated its drug policy or had the potential to alter Employer's ability to contract with the State Police, it did not prove willful misconduct. Employer also did not prove that Claimant's off-the-job conduct directly affected his ability to perform his duties. Thus, we find that the Board did not error in granting benefits.
Accordingly, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 9th day of January, 2013, the order of the Unemployment Compensation Board of Review, dated December 14, 2011, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge