Excessive Absenteeism May Constitute Willful Misconduct and Preclude the Receipt of Unemployment Compensation

In a recent en banc decision, the Pennsylvania Commonwealth Court held that a pattern of excessive absenteeism and tardiness may constitute “willful misconduct,” rendering the Claimant ineligible for unemployment compensation benefits, particularly where the Claimant demonstrates a “pattern of habitual, unexcused tardiness and absences.” Grand Sport Auto Body v. UCBR, Case No. 12-2024 (Cmwlth Ct.), decided October 24, 2012.

The Claimant in Grand Sport was an automobile detailer from January 2008 to March 2011.  In June and December 2010, the employer warned Claimant about excessive tardiness.  The problem continued and between September 2010 and March 2011, Claimant was tardy or absent 19 times without a valid excuse.

In March, Claimant was granted time off to get married in Mexico.  He was to return to work on March 21, 2011.  However, he alleged that his return flight had been overbooked and that he could not leave Mexico until March 22.  He returned to work on March 23 and was suspended pending further review.  Claimant was thereafter discharged due to his lengthy history of tardiness and absenteeism.

The Referee awarded benefits, focusing only on the Mexico trip and finding that the employer had not demonstrated “willful misconduct” in the context of his return to work two days late.  The UCBR affirmed. On appeal, however, the Commonwealth Court reversed and ruled in favor of the employer, noting that Claimant’s entire attendance history should have been examined and considered by the Referee.  Further, the court held that Claimant had not met his burden of showing that there was “good cause” for his actions and that his actions were justifiable and reasonable under the circumstances.

The Court concluded that Claimant’s conduct fell below the standard of behavior the employer had a right to expect and was inimical to the employer’s interests.  In light of this decision, employers should consider litigating unemployment cases which involve a pattern of excessive absences, or prior disciplinary record, on a willful misconduct theory. The chances of success will depend, of course, on the specific facts of a given case.


By:  Paul D. Clouser, Esquire

Claimants in workers’ compensation cases are increasingly asking Workers Compensation Judges to award penalties of up to 50% of past due benefits, for violations of the Workers’ Compensation Act.  Since penalties are discretionary and can be awarded in addition to “unreasonable contest” attorney fees, it is worthwhile for employers to monitor case law developments in this area.

On October 11, 2012, the Pennsylvania Commonwealth Court issued an en banc decision helpful to employers, in Krushauskas v. WCAB.  Krushauskas sustained an accepted shoulder injury and began receiving benefits by way of a Notice of Compensation Payable beginning in September 2005. In July 2006, while out on workers’ compensation leave, Krushauskas accepted an early retirement offer, signing a “release,” which stated that he was not under duress and was not disabled, and that he was electing early retirement.  A lump sum retirement payout was made, and the employer unilaterally suspended his workers’ compensation benefits, without a signed Supplemental Agreement or other Bureau documentation.

Krushauskas filed a Penalty Petition alleging that the employer had violated the Workers’ Compensation Act, by unilaterally suspending his workers’ compensation benefits without an appropriate agreement or Court Order.  The Judge treated the employer’s Answer to Penalty Petition as a Petition for Suspension, granted that petition and refused an award of penalties.  The Judge agreed that the employer had violated the Act.  However, because no benefits were due, a penalty could not be computed and the Penalty Petition was denied.  The Judge essentially found that Claimant removed himself from the workforce by accepting the early retirement offer.  He rejected, as not credible, Claimant’s testimony that he took the offer due to his ongoing shoulder problems.

Although we do not agree with the employer’s methods in transitioning this workers’ compensation claimant to retirement status (i.e., it is always best to ask for a signed Supplemental Agreement with appropriate verbiage, in addition to any employment release or early retirement agreement), the important take away from this case is that penalties should not be awarded, even where a technical violation of the Act occurs, when the Claimant was not entitled to any future benefits in the underlying case and was therefore not “prejudiced” by the employer’s actions.


By:  Denise E. Elliott, Esquire and Lisa A. Watson, Pa.C.P.

WCAIS: Workers’ Compensation Automation and Integration System

* IMPORTANT Requirement Just Announced*

The Pennsylvania Department of Labor & Industry (the Bureau of Workers’ Compensation, the Workers’ Compensation Office of Adjudication and the Workers’ Compensation Appeal Board) recently launched the Workers’ Compensation Automation and Integration System, or WCAISWCAIS is a web-based information system that will allow electronic communication among the three workers’ compensation program areas and interested parties, including claimants and employers.

WCAIS will enable electronic communication and permit online filing, online document management and around-the-clock access to claim information.  Access to WCAIS will come in two phases.  Phase 1 includes the Workers’ Compensation Appeal Board and the Bureau of Workers’ Compensation Helpline.  Phase 1 went live in September 2012.  Phase 2 includes the remainder of the Bureau of Workers’ Compensation, including the Workers’ Compensation Office of Adjudication.  Mark your calendars — Phase 2 is scheduled to go live in September 2013ALL documents will be filed electronically from that date forward.

Attorneys, employers, insurers, third-party administrators, injured workers and others must register to access WCAIS, using screens designed for each user group.

Employers, insurers and third-party administrators, deemed “Trading Partners” will be required to submit transactions to the Pennsylvania Department of Labor & Industry through an approved company deemed a “Transaction Partner.”

Only transactions (filings) coming from these approved Transaction Partners will be accepted by the Bureau:

  • Ebix, Incorporated
  • HealthTech, Incorporated
  • Insurance Services Office (ISO), Inc.
  • Mitchell International, Incorporated

PLEASE NOTE:  The Bureau requires that all Trading Partners who submit transactions to the Bureau use one of its approved Transaction Partners.  Accordingly, Trading Partners must select a Transaction Partner and execute an Agreement with such Transaction Partner, for submission to the Bureau from December 17, 2012 to February 28, 2013.

The Trading Partner is solely responsible for negotiating and contracting with one of the above approved Transaction Partners.  There will be a cost for working with Transaction Partners.  However, the extent of the cost is not yet known.

If you would like to receive information about these organizations, send your name and email address to RA-LI-PA-WCAIS-UP@pa.gov.  You may also use this email address to contact the Bureau with questions or concerns about the WCAIS project or the anticipated Electronic Data Interchange implementation.

Please contact Lisa Watson, if you would like a copy of the most recent EDI (Electronic Data Interchange) Claims Implementation Guide at watson@kkallaw.com.

We hope you find this issue of KKAL’s Labor and Employment Law Watch helpful and informative.  Please understand that the Law Watch is designed to provide information about current developments and required actions.  It does not constitute legal advice, and you should consult a lawyer knowledgeable in this area of the law prior to taking specific actions on the issues addressed.

If you have any questions regarding any labor and employment law matter, including the issues discussed in this newsletter, please do not hesitate to contact us at 717/392-1100, or email us at the following addresses:



Labor & Employment Practice Group

(717) 392-1100

Amy G. Macinanti                            macinanti@kkallaw.com

Jeffrey D. Litts                                          litts@kkallaw.com

Paul D. Clouser                                   clouser@kkallaw.com

Denise E. Elliott                                     elliott@kkallaw.com

Howard L. Kelin                                      kelin@kkallaw.com

Katherine L. Shantz                            shantz@kkallaw.com

© 2013 Kegel Kelin Almy & Lord LLP.  All Rights Reserved.

All Rights Reserved.   These materials may not be reproduced in any way without the written permission of Kegel Kelin Almy & Lord LLP.    This publication is designed to provide general information on the topics presented.  If legal or other professional advice is required, the services of a professional should be sought.