Unemployment Compensation and Absenteeism

A Pennsylvania employee who missed Work because he had been bumped from an overbooked air flight was denied unemployment compensation when his employer convinccd a Pennsylvania appellate court that the employee had engaged in willful misconduct,

The employee worked for an auto body company, cleaning cars. Over a six-month period, the employee was tardy or absent without an excuse 19 times. The employer gave the employee written warnings for all the infractions. Nevertheless, the employer agreed that the employee could take vacation time to fly to Mexico to get married there.

When the airline bumped the employee from his return flight, the employee called the employer from the airport and explained his dilemma, advising that he was “stuck in Mexico.’ It was undisputed that the employee had been unexpectedly bumped from his flight and that he had returned to work as quickly as possible, missing only two days of work.

After the wedding trip, the employer fired the employee, due to his history of poor attendance and tardy arrivals. At the hearing on the employee’s unemployment claim, the employer’s management team testified that the employee had been warned multiple times and had been fired once for tardiness, then rehired, Management team members had given the employee a later start time in the morning and had offered to call him to wake him upon work days. They testified that the decision to fire him again was made while the employee was away on his Mexico wedding trip.

The employee’s testimony eroded his claim. Announcing under oath, “Let’s be real,” the employee observed, “Who’s not late more than twice in one month due to this, that or the other thing?” The hearing officer granted the employee unemployment benefits, reluctantly concluding that excessive absenteeism and tardiness are grounds for discharge but do not constitute “willful misconduct,” the standard necessary to support a denial of unemployment benefits.

The employer appealed and won. The Pennsylvania Commonwealth Court bluntly observed that employers have the right to expect that employees will attend work as scheduled, that they will arrive on time, and that they will not leave early without permission. The court described habitual tardiness as “inimical to an employer’s interest” and held that a history of absenteeism or tardiness does constitute willful misconduct that will bar unemployment benefits for employees who are terminated as a result of that misconduct.

Employees who miss Work or arrive late as a result of health problems should always document those events with medical records. Employers who expect to avoid unemployment claims should keep clear records of their employees’ time at work and must issue written warnings for absenteeism or tardiness.

Resolution of legal issues depends upon many factors, including variations of facts and interpretations of Pennsylvania law. This newsletter is not intended to provide legal advice on specific subjects, but rather to provide insight into legal developments and issues. The reader should always consult with legal counsel before taking action on matters covered by this newsletter.

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