Unemployment Compensation Don’t Disqualify Yourself

Don’t Disqualify Yourself

Unemployment compensation can provide benefits during a difficult time. However, if an employee commits willful misconduct, benefits will be denied. In a recent appeals court case, an employee should have consulted an attorney to inform her whether the facts of her case supported willful misconduct and how to prepare for the hearing. Instead, she represented herself and pursued a claim which resulted in an unfavorable, and potentially embarrassing, decision for her.

Ms. Walker lost her case even though the employer did not attend the hearing. An employer must prove willful misconduct and usually when it does not attend the hearing, it is difficult for an employer to prove its case because there is no employer witness testimony and the information in the file is hearsay which can be objected to.

Ms. Walker did not object to the hearsay information and her own testimony proved the employer’s case. An attorney could have made the proper objections which would have eliminated all of the employer’s evidence. An attorney could have prepared and structured her testimony to provide basic information and at least give her more of a chance of success. So, what were the facts that lead to an unfavorable decision?

Ms. Walker worked as a food service work manager and one of her duties required her to travel in order to submit invoices and forms to a supervisor. After delivering forms to a supervisor in the morning and while on company time, she visited a car rental agency to return a rental car and pick up her personal car. This visit caused her to run late, but she failed to call her employer to inform it that she was running late. She decided not to return to work that day. However, she called a co-worker who used her social security number to clock her out at the end of the day.

Ms. Walker returned to work the next day and a week later the employer terminated her for theft of time and falsification of records. Surveillance cameras captured the co-worker using her number to clock her out.

Ms. Walker was denied benefits due to willful misconduct. She claimed “it was [an] accident that somebody clock[ed] me out” and she did not call her supervisor because she heard he was leaving work early. She admitted to being on company time while retrieving her personal car from the rental company but she could not produce the rental agreement. The referee thought her story was too coincidental that someone had her social security number and clocked her out, and that she didn’t call someone else at her employer.

The appeals court affirmed the denial of benefits. As the appeals court noted, Ms. Walker never explained why she used company time to handle personal errands from 9:30 A.M. until the end of the work day while on company time and being paid her wages. The courts have held that “receiving pay for hours not worked or using work time to attend to personal affairs without authorization can constitute willful misconduct”.

Perhaps, this case could not have been won at a hearing due to the facts. However, an attorney could have advised her of the weakness of her case and potentially not to pursue a hearing and an appeal. Now, there is a reported, public opinion detailing her willful misconduct.

Walker v. Unemployment Compensation Board of Review, (Pa.Cmwlth. 2019).

Hoffmeyer & Semmelman LLC is a law office in York PA. Contact us today to schedule an appointment to review your legal documents.

Written by: Robert L Buzzendore, Esquire

As Reviewed by: William F. Hoffmeyer, Esquire

© Copyright by Hoffmeyer & Semmelman LLC, April 2019

WILL YOUR WILL BE CLEAR

A Will informs other people of your intentions regarding distribution of your assets upon death. A poorly drafted Will may not accomplish your goals because others may not understand your intent. This may lead other, especially disgruntled heirs (usually family members) to challenge your Will. A court may need to decide the case. Remember, in a court proceeding, other persons, not you, would be testifying about your intentions and their self-interest may not be the same as your interest.

Your intention is determined by the language used in your Will, your scheme of distribution and the surrounding fact and circumstances. A court cannot substitute its thinking to decide what you meant to say.

Also, your intention is determined as of the date you signed the Will. This is a reason why you need to periodically review your Will and make necessary changes when they occur. IF your intentions have changed since you signed the Will, but you do not change your Will, a court would look at your intentions as of the date you signed it and enforce it as written.

A properly drafted Will preserved the decedent’s intent in a recent February 2019 appeals court case. In re Estate of Tscherneff, 2019 PA Super 25, 886 MDA 2018.

Mr. Tscherneff signed his Will in May 1999. As a result of his wife’s death, his Will left his estate equally to his4 children. He also appointed his one son, Dimiter, as his agent under a power of attorney. During Mr. Tscherneff’s life, Dimiter used the power of attorney and transferred many assets to himself and his two sisters in recognition of the care they provided to their father. The case is not clear on this point but Peter, his other son, apparently did not provide care to his father and he did not receive any distribution from Dimiter.

Mr. Tscherneff died in 2016. His estate only had one remaining asset: a TD Ameritrade account valued at $143,238.01. Peter filed a request to remove Dimiter as executor claiming he mismanaged estate funds and inappropriately gave money to himself and his sisters during Mr. Tscherneff’s life. Peter argued his 25% share would have been worth more if not for the distributions Dimiter made during their father’s life. Peter’s share was 25% of $143,238.01 instead of 25% of a larger number, which is why Peter challenged Dimiter’s actions.

The Superior Court held Mr. Tscherneff’s Will was clear and his intent in May 1999 was to divide his estate equally among the four children. Mr. Tscherneff did not change his Will and he knew Dimiter made distributions during his life to himself and his sisters. Consequently, the Court held Dimiter’s distributions were not improper and they were not advances under Mr. Tscherneff’s Will. Each child would receive 25% of the TD Ameritrade account.

Peter lost his challenge, but more importantly, Mr. Tscherneff’s wishes were fulfilled. This case emphasizes the importance of writing Wills which can be understood by others and are clear in their meaning. If you have a Will or are thinking about creating one, you should ensure your goals are in a properly written Will. It may enable a court to uphold your Will and your desires.

Hoffmeyer & Semmelman LLC is a law office in York PA. Contact us today to schedule an appointment to review your legal documents.

Written By Robert L. Buzzendore, Esquire

As Reviewed By William F. Hoffmeyer, Esquire

© Copyright by Hoffmeyer & Semmelman LLC, March 2019

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