Opinion
No. 897 C.D. 2013
02-20-2014
Shawn A. Werley, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Shawn A. Werley (Claimant) petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) finding him ineligible for UC benefits pursuant to Section 402(e) of the UC Law because he did not have good cause for not accurately reporting his work time. On appeal, Claimant argues that he completed his work logs in accordance with Iron Mountain's (Employer) standard business practices; therefore, he had good cause for the manner in which he reported his time and the Board erred by finding that his actions rose to the level of willful misconduct.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (providing, in relevant part, that an employee is ineligible for UC benefits for any week in which the employee's unemployment is due to willful misconduct connected with the employee's work).
Claimant was employed by Employer as a record center coordinator until his discharge on October 3, 2012. (Board Op., Findings of Fact (FOF) at ¶ 1.) Claimant filed an internet claim for UC benefits wherein he stated that he was discharged for "stealing time." (Internet Initial Claims, R. Item 2.) In response to Claimant's claim, Employer stated that Claimant was discharged for violating Employer's policies by socializing with other employees for an extended period of time. (Employer's Separation Information, R. Item 3.) The UC Service Center determined that Claimant was not ineligible for UC benefits pursuant to Section 402(e) because Employer did not sustain its burden of proving that Claimant's action constituted willful misconduct. (Notice of Determination, R. Item 4.)
Employer appealed the UC Service Center's determination and a hearing was held before a UC Referee. Employer appeared and presented the testimony of its Human Resources Manager as well as documentary evidence. Human Resources Manager stated that Employer discharged Claimant "for falsifying time records and knowingly being unproductive while on compensated time." (Hr'g Tr. at 4, R. Item 8.) Human Resources Manager testified that, after she received a complaint about employees socializing on company time, she viewed a video tape depicting Claimant talking with two co-workers for "at least 15 minutes" on October 2, 2012 beginning at 7:06 a.m. (Hr'g Tr. at 7, 11.) Human Resources Manager testified that she knew that the conversation depicted on the video between Claimant and the co-workers was not work-related because: (1) of the participants' body language; (2) the lack of paperwork and equipment; and (3) witnesses informed her that Claimant and the co-workers conversed about fantasy football and Claimant's recent vacation. (Hr'g Tr. at 13.) Employer submitted snapshots taken from the video into evidence. (Hr'g Tr. at 11-12.) Human Resources Manager testified further that Claimant's work log for October 2, 2012 for the time period between 7:00 a.m. and 8:00 a.m. reported that Claimant spent 30 minutes checking emails and 30 minutes performing inventory audits. (Hr'g Tr. at 9-10.)
Claimant appeared pro se at the UC Referee's hearing and testified on his own behalf. Claimant disputed that he was unproductive while on compensated time. (Hr'g Tr. at 13.) Claimant testified that he spoke briefly with his co-workers about his recent vacation during the October 2, 2012 conversation and that the remainder of the conversation was about work-related problems that arose while Claimant was away. (Hr'g Tr. at 15.) Claimant testified further that he was aware that his daily work logs should be completed accurately. (Hr'g Tr. at 16.) However, Claimant testified that he completed his work logs the same way every day by putting down that he spent 30 minutes at the beginning of each day checking emails. (Hr'g Tr. at 15-16.) Claimant explained that he tried to check his emails in the morning and before he left for the day but, as the record center coordinator, he had to check his emails throughout the day. (Hr'g Tr. at 15.) Claimant explained further that on some days he spent more or less than 30 minutes checking emails and, because he was in different areas of the building throughout the day, it was difficult to record his time so he would "catch up" on filling out his work log "later on in the day." (Hr'g Tr. at 15-16.)
The UC Referee determined that Employer failed to present any first-hand testimony that Claimant committed willful misconduct by socializing with two co-workers on company time. (Referee Decision at 2.) The Referee pointed out that Human Resources Manager's testimony was based upon a video observation and what others, who did not testify at the hearing, told her about the conversation Claimant had with the two co-workers. (Referee Decision at 2.) The UC Referee did not address the issue of whether Claimant falsified his work logs. Accordingly, the UC Referee issued a decision affirming the UC Service Center's determination and granting Claimant UC benefits pursuant to Section 402(e) of the Law.
Employer appealed the UC Referee's decision to the Board. The Board made the following findings of fact:
1. The claimant was last employed as a record center coordinator by [Employer] from [June 29, 1998] until October 3, 2012, at a final rate of $18.97 per hour.
2. The employer's standards of conduct and behavior call for disciplinary action up to and including termination for loitering or wasting time in or on company property during work hours, and for falsification of time, attendance, or any other company records.
3. The employer's safety and security policy calls for the immediate termination of employment for falsifying company documents and for disciplinary action for failing to abide by the company's standards of conduct and behavior.
4. The claimant was aware of the employer's standards of conduct and behavior and the safety and security policy, as evidenced by his signed acknowledgement.
5. On December 16, 2011, the claimant was issued a final written warning from the employer for not properly clocking in and out of the building.
6. The claimant was warned that not properly clocking in and out of the building was considered falsification of company documents, and any further infractions could result in termination.
7. On October 2, 2012, the claimant returned from vacation and clocked in at 7:02 a.m., at which time he began checking his emails.
8. At approximately 7:06 a.m., a coworker called the claimant out into the common area where the claimant, the coworker, and a second coworker stood for approximately 15 minutes talking with each other.
9. During the conversation, the coworkers and the claimant discussed the claimant's vacation and work[-]related matters.
10. At approximately 7:20 a.m., the claimant and both coworkers walked down the aisle to begin working on inventory audits.
11. On the claimant's operating log sheet, he entered that between 7:00 a.m. and 8:00 a.m. on October 2, 2012, he spent thirty minutes writing emails and completing reports and thirty minutes on inventory audits.
12. On October 2, 2012, the employer received a complaint that three employees were standing around talking for an extended period of time.
13. The human resources manager reviewed video surveillance which showed the claimant with the two coworkers conversing from 7:06 a.m. until 7:20 a.m.
14. On October 3, 2012, the employer met with the claimant to discuss his activities from the previous day.
15. The claimant admitted that he did talk about his vacation with coworkers in addition to work-related matters, and that he did enter thirty minutes of writing emails into his operating log when he did not perform this activity for thirty minutes.
16. The claimant was aware that he was required to provide accurate time logs rather than estimates.
17. The employer suspended the claimant pending the conclusion of the investigation.
18. On October 5, 2012, the claimant was discharged for falsifying time records and knowingly being unproductive while on compensated time, in violation of the employer's policies.(FOF ¶¶ 1-18.)
Based upon the findings, the Board concluded that Employer failed to present any first-hand testimony of what Claimant and the co-workers discussed during the October 2, 2012 conversation. The Board determined that "[C]laimant's admission that he briefly discussed his vacation in addition to work activities with his co-workers is not enough to establish willful misconduct." (Board Op. at 3.) However, the Board concluded that Claimant was ineligible for UC benefits due to the second reason Employer discharged Claimant; specifically, Claimant's failure to accurately report the time on his work logs. The Board pointed out that "[C]laimant admitted to incorrectly reporting his time" and that "[C]laimant knew that his [work] log needed to be accurate." (Board Op. at 3.) The Board found that Claimant's practice of reporting 30 minutes for emails every day did not constitute "good cause for failing to accurately report his time." (Board Op. at 3.) Therefore, the Board found that Claimant engaged in willful misconduct and found him ineligible for UC benefits pursuant to Section 402(e) of the Law. Claimant now petitions this Court for review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
Section 402(e) of the UC Law provides, in pertinent 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). While the UC Law does not define "willful misconduct," our Court has defined it as:
(1) a wanton or willful disregard for an employer's interests; (2) a deliberate violation of an employer's rules; (3) a disregard for standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). "If the employer alleges willful misconduct because the claimant violated a work rule, the employer must prove both the existence of the rule and its violation." Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). A claimant must also be "made aware of the existence of the work rule." Bruce v. Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010).
If the employer satisfies its burden, the burden shifts to the employee to show that he or she had good cause for the conduct. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). "A claimant has good cause if his or her actions are justifiable and reasonable under the circumstances." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). "Whether a claimant has good cause to violate an employer's rule or policy is a question of law subject to this [C]ourt's review and should be viewed in light of all of the attendant circumstances." Id. at 1208.
In this matter, Claimant does not dispute the existence of Employer's work rule that an employee would face disciplinary action, including termination, for falsifying time records. Claimant also does not dispute that he was aware of Employer's rule. Instead, Claimant contends that he had good cause for non-compliance with Employer's expectations of how an employee should complete his work log. Claimant asserts that the term "accurate" is not defined in Employer's rules and that, given the nature of his position, he took a reasonable approach to completing his work log. Claimant argues further that the manner in which he reported this time was a standard business practice of Employer. Thus, Claimant contends, he did not commit willful misconduct because his behavior was reasonable and justifiable.
Claimant also argues that he completed his work log in accordance with his supervisor's instructions; however, Claimant offered no testimony or evidence to support this assertion. --------
Upon review of the record in this matter, we conclude that the Board erred by determining that Claimant did not have good cause for his conduct. It is clear from the testimony that Claimant did not record that he spent 30 minutes checking emails on the morning of October 2, 2012 in order to hide the fact that he engaged in an approximately 14 minute conversation with his co-workers. To the contrary, Claimant testified that he always recorded that he spent 30 minutes at the beginning of each day checking emails. (Hr'g Tr. at 15.) Claimant explained that he tried to check his emails in the morning and before he left for the day but, as the record center coordinator, he had to check his emails throughout the day. (Hr'g Tr. at 15.) Claimant explained further that, because the nature of his job required him to "jump around" and do two or three things in another work area, rather than go back and forth to complete his work log, he would "catch up" in filling out his work log later in the day. (Hr'g Tr. at 15.) Because the amount of time he spent checking emails ranged from 15 to 28 minutes per day, Claimant testified that he would "basically put it to half an hour." (Hr'g Tr. at 16.)
Given Claimant's explanation of how he completed his work log and why, which was not discredited by the Board, and the fact that there is no evidence that Claimant deliberately violated Employer's rule in order to deceive Employer, we conclude that Claimant established that he had good cause for the manner in which he completed his work log. Moreover, the fact that Claimant was warned previously does not alter our conclusion because the warning was not related to the falsification of his work logs. Claimant was warned, in response to a single episode occurring on December 16, 2011, "that not properly clocking in and out of the building was considered falsification of company documents." (FOF ¶ 6.) As such, the Board erred by finding that Claimant committed willful misconduct.
For the foregoing reasons, the Board's Order is reversed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 20, 2014, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is REVERSED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
Because I believe that the majority engaged in fact finding in determining that Shawn A. Werley (Claimant) had good cause for his conduct, I respectfully dissent.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge