EMPLOYEE WHO DOES NOT REPORT CRIMINAL CHARGES FILED AGAINST HIM WHERE EMPLOYER RULE REQUIRES NOTICE TO EMPLOYER OF AN ARREST OR CONVICTION DOES NOT COMMIT WILLFUL MISCONDUCT WHERE THE EMPLOYEE VOLUNTARILY REPORTED FOR FINGERPRINTING AND PHOTOGRAPH AND ADMISSION TO ARD AND IS NOT APPREHENDED BY AUTHORITIES OR HANDCUFFED AND TAKEN INTO CUSTODY OR TRANSPORTED TO THE POLICE STATION BY THE POLICE
In the recent case of Adams v. Unemployment Compensation Board of Review (Pa. Commonwealth Court, October 22, 2012), an employee appealed from the Unemployment Compensation Board of Review (UCBR) affirmation of a referee decision to deny unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law where the employer had terminated the employee for violation of a written rule indicating that the employee “must notify employer of any arrests or convictions while employed.” The employee was not forcibly handcuffed or physically taken into custody but was required to appear before a magistrate, was fingerprinted and agreed to participate in the Accelerated Rehabilitation Disposition (ARD) program for first time offenders.
The employee did not advise the employer of his arrest which the employer indicated violated the work rule and the employee admitted he knew of the rule. The employee asserted that he was not “arrested”. The employee admitted that charges were filed against him and that he voluntarily appeared before a magistrate and appeared for fingerprinting and photographing, but he said that it was not an “arrest” because it was a voluntary appearance. In fact, the employee testify that if he had not appeared voluntarily, then the police would have arrested him.
The UCBR concluded that the employer met its burden of proving violation of work rules known to the employee which was tantamount to “willful misconduct.”
Willful misconduct is (1) a wanton and willful disregard of the employer’s interests; (2) a deliberate violation of the employer’s rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, or evil design, or an intentional and substantial disregard of the employer’s interests or the employee’s duties and obligations.
When an employee is discharged for violating a work rule, the employer must prove that the work rule existed; that the work rule was reasonable; that the claimant was aware of the rule; and finally, that the rule was in fact violated. Once these items are proved, the employee’s only defense is to show good cause for violating the rule by proving that the conduct was justified under the circumstances.
UCBR found that the employer rule was reasonable and that the employee had received written notice and in fact signed a receipt that he had been notified of the rule. The rule indicated that failure to follow the rule could result in corrective action including discharge.
The employee did not dispute that he was aware of the policy nor did he dispute the reasonableness of the policy; rather the employee argued that he was not “arrested” as he understood that term and therefore was under no obligation to report the charges filed against him.
Senior Judge Rochelle Friedman, for the Court, discussed the common understanding and meaning of the term “arrested” as a deprivation of a person’s liberty or legal authority, being taken under real or assumed authority or custody of another for the purpose of holding or detaining him due to criminal charges. Applying these definitions, the Court determined that within the common understanding of the word “arrest”, employee was not arrested. The employee testified that if he did not voluntarily appear he would be arrested. That is, if claimant did not voluntarily appear he would be taken into custody. Thus, employee asserted, as he understood the term, that he was not arrested because he voluntarily appeared but would have been arrested had he not voluntarily appeared. With this understanding of the term “arrest”, employee felt that he was not arrested so, under the mandate of the employer rule, did not feel he needed to report the charges. The employee participated in the ARD program, so no conviction ever occurred.
The Court noted that the employee was discharged because he violated the work rule, not because of the criminal charges filed. Because the employee was neither arrested as he understood the term nor convicted, the Court found that the employee did not violate the work rule and therefore his conduct did not constitute willful misconduct. The Commonwealth Court reversed the UCBR, rendering the employee eligible for unemployment compensation benefits.