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While an employee may be terminated for illegal off-duty conduct, such conduct might not preclude collecting unemployment benefits, the Pennsylvania Supreme Court has ruled. In Burger v. Unemployment Compensation Board of Review, a nursing home worker’s illegal drug use was not shown to have affected her work, and thus could not justify denial of unemployment benefits under � 402(e) of Pennsylvania’s unemployment compensation law, which governs eligibility for benefits in the face of employee willful misconduct. Another possible theory for denying jobless pay, � 3 of the same statute, was excluded by the high court because the issue had not been raised until the case was in commonwealth court. “There is no question claimant could be fired for her drug use; a responsible nursing home cannot be criticized for this,” Justice J. Michael Eakin wrote. “However, the question of justifiable termination and eligibility for unemployment benefits are two different things; an employee may be fired for completely proper reasons, yet remain eligible for benefits.” According to the court, when questioned by her employer, certified nurses’ aide Diana A. Burger admitted to using marijuana every night but claimed she did not work under the influence of the drug. The court also said she denied abusing painkillers not prescribed to her, though the commonwealth court said in its opinion that she admitted to problems with pain medications. “I think,” said Burger’s attorney Stephen D. Wicks, a solo practitioner in Altoona, Pa., “[the decision] at least makes it clear from the facts of this case that employers cannot expect to necessarily control off-the-job behavior, and cannot expect that violations of their beliefs about what off-the-job behavior should be will permit them to deny unemployment benefits.” In contrast, Burger’s employer argued that drug abuse constitutes willful misconduct since it is not within an employer’s expectations, Andrews Wagner & Beard associate Roberta Binder Heath, who worked on the employer’s case, said. Seemingly agreeing with Burger’s employer, a UCBR referee and the commonwealth court both concluded that though Burger’s drug use may not have diminished her performance, it did merit denying unemployment benefits. The high court, however, disagreed. “Section 402(e) is used to disqualify claimant for work-related misconduct,” the court wrote, quoting Southeastern Pennsylvania Transportation Authority v. UCBR, 506 A.2d 974, 977 (Pa. Cmwlth. 1986) (emphasis in original). “Section 3 is used to disqualify claimants for non-work-related misconduct which is inconsistent with acceptable standards of behavior and which directly affects the claimant’s ability to perform his assigned duties.” The analysis, the court said, is different for each section. The court cited Navickas v. UCRB, 787 A.2d 284, 288 (Pa. 2001), for the proposition that off-duty misconduct will not support a finding of willful misconduct under � 402(e) unless it extends to performance on the job, thereby rendering the misconduct work-related. The court found it significant that in Burger’s case, her performance was apparently satisfactory. Because the employer failed to establish that Burger’s conduct was work-related, the court held that � 402(e) did not provide grounds for denying benefits. “Section 3 may be an independent basis for denying benefits,” the court said, “when an individual is unemployed through his or her own fault due to conduct not connected with work.” However, because a � 3 argument was not raised until commonwealth court brought up the issue, the supreme court could not consider the theory. “Thus, we are constrained to reverse the commonwealth court because � 3 was not raised before the UCBR; as a theory for denying claimant benefits, it is waived,” Eakin wrote. Chief Justice Stephen A. Zappala concurred in the result. Assistant Counsel Maribeth Wilt Seibert and Deputy Chief Counsel Clifford F. Blaze of the Pennsylvania Unemployment Compensation Board of Review represented the UCBR. David Paul Andrews of Andrews Wagner represented Burger’s employer, Garvey Manor.

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