Can an "honest mistake" be "willful misconduct?"

Yes, apparently, according to a sharply divided Pennsylvania Commonwealth Court opinion issued in Oliver v. Unemployment Compensation Board of Review.

Typically, unemployment compensation benefits are awarded to a claimant who is not responsible for willful misconduct. The burden of proving willful misconduct is on the employer.

Traditionally, willful misconduct has required a knowing action on the part of the claimant that his or her conduct was in violation of a known work rule. There is a case denying benefits that held that a negligent violation of a workrule might be sufficient. In that case, Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461 (Pa. Cmwlth. 1994), a claimant was aware of a rule requiring him to walk around the back of his truck before backing up. He failed to do so, and backed his truck into a light standard resulting in damage to the truck, after which he was terminated. The referee had granted benefits, finding that the light standard had been in the claimant's "blind spot," but the board reversed and the court affirmed finding that regardless whether the collision was "accidental" or not, the claimant had deliberately failed to walk around the back of the truck, and thereby had deliberately violated a workplace rule.

In Oliver, the claimant, a teacher at a pre-school, had been reminded two weeks earlier of the school's "zero tolerance policy" regarding failure to keep 100% of all children in their care under 100% control.

While exiting a playroom to lead her students outside, the claimant tripped then closed the door behind her accidentally leaving one of her students in the room. Several minutes later it was pointed out to her that she had only five of her six charges, and had left one of them alone in the playroom unattended. She was terminated, although she claimed that the violation had been an "honest mistake."

The Commonwealth Court ruled that "honest mistake" or not, the claimant knew that the policy existed, she had previously been warned, and she had nonetheless violated it when she left the student alone in the playroom. Of note was that the court considered all of the explanations the claimant offered, and still noted that her violation of the policy, regardless of whether accidental or deliberate, was "knowing," and accordingly justified a denial of benefits.

The moral of the story is that in order to prevail at UC hearings in Pennsylvania where an employer alleges "willful misconduct," it will be easier for employers to establish the employee's "knowledge" of the violated work rule and less important for the employee to explain the reasons behind the violation.