Employee's History Of Absenteeism Sufficient To Deny UC Benefits Even If Final Incident Justified

by McNees Wallace & Nurick LLC

Historically, in determining whether an employee discharged for absenteeism and tardiness was eligible for unemployment compensation benefits, the court’s analysis had focused on the final incident that led to termination. Specifically, even where the employer could point to a pattern of excessive absenteeism as the cause for discharge, the employee was not disqualified from receiving benefits if the last absence was justified. Late last year, however, the Commonwealth Court of Pennsylvania issued a decision that undermines this "last in time" approach.

In Grand Sport Auto Body v. UCBR (pdf), the Court considered whether Andrew Terrell was eligible for benefits after being discharged for excessive absences. Mr. Terrell had a pattern of unexcused tardiness and absences, including 19 incidents in a period of less than six months, and was previously warned about his attendance issues. His employer even pushed back his start time to improve his attendance, but he continued to be tardy. Towards the end of his employment, Mr. Terrell requested and was approved for leave from March 14 through March 21, 2011 to get married in Mexico. On March 21, 2011, Mr. Terrell’s flight home from Mexico was overbooked, leaving him unable to return to work on March 22, 2011, as scheduled. When Mr. Terrell did return to work the following day, he was suspended and later discharged because of his “history of attendance and tardy arrivals.”

Following his termination, Mr. Terrell applied for unemployment compensation benefits. Relying on court precedent, the referee found Mr. Terrell to be eligible for benefits. Specifically, the referee concluded that because the last absence was justified due to a change in flight schedule it did not constitute willful misconduct sufficient to deny benefits. The Unemployment Compensation Board of Review (“Board”) agreed.

On appeal, the Commonwealth Court of Pennsylvania concluded that the Board erred in basing its determination on Mr. Terrell's last absence on March 22. Rather, the Court noted, consideration should have been given to his pattern of excessive and unexcused incidents of tardiness and absenteeism. The Court reasoned that an employer has the right to expect an employee to attend work when scheduled and to be on time. Habitual tardiness and excessive absenteeism, absent a showing of good cause on the part of the employee, is inimical to this interest and, as such, may rise to the level of willful misconduct.

In the present case, only three of Mr. Terrell’s absences and late arrivals appeared to be health-related, and he was unable to offer good cause to justify the remainder. Similarly, when given the opportunity at the hearing to explain his attendance history, Mr. Terrell “demonstrated a decidedly cavalier attitude toward [his employer’s] reasonable expectation that he appear at work on time.” Ultimately, the Court held that Mr. Terrell’s history of absences and tardiness and his failure to offer good cause to justify those absences were sufficient to establish willful misconduct and deny benefits. That his final absence—the one that got him fired—was justified did not change the analysis.

In light of the Grand Sport decision, employers should be sure to document each occurrence of absenteeism or late arrival, including the employee’s stated reason for such occurrence. And then when an employee’s attendance problems become excessive, the employer should make sure it can support that the termination decision is based on the history of absenteeism and tardiness, not just the final incident. With this documentation, the employer will be able to not only justify the discharge, but also establish willful misconduct rendering the employee ineligible for benefits.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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