Jacobs v. Unemployment Compensation Board of Review , 2015 Pa. Commw. LEXIS 553 ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin E. Jacobs, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 484 C.D. 2015
Respondent : Submitted: September 11, 2015
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE COVEY FILED: December 21, 2015
Kevin E. Jacobs (Claimant) petitions this Court, pro se, for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) March 11, 2015
order affirming the Referee’s decision denying him UC benefits under Section 402(b)
of the UC Law (Law).1 The sole issue before this Court is whether the UCBR erred
when it concluded that Claimant voluntarily quit his employment without a
necessitous and compelling reason. After review, we reverse.
Claimant worked for staffing agency Bridgeview Partners (Employer)
from August 4, 2014 through September 15, 2014. Claimant accepted an assignment
and signed a subcontractor agreement (Agreement) to work 40 hours per week as a
help desk analyst for Independence Blue Cross for 12 months at a rate of $18.00 per
hour. Claimant testified that, at the time he executed the Agreement, his
understanding was that he would be paid on the 15th and the last day of each month.
1
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to ineligibility for UC benefits “due to voluntarily leaving work without cause of a
necessitous and compelling nature[]”).
He was not paid on August 15, 2014 and, due to concern about his finances, he
brought the matter to Employer’s attention. Employer issued Claimant a check
outside the payroll system. The same situation occurred when he was not paid on
August 30, 2014. Employer informed Claimant that he would have to wait 30 days
for the next check. On September 18, 2014, Claimant notified Employer that unless
he received his overdue pay by September 21, 2014, he would not report to work and
he would consider the Agreement terminated due to Employer’s breach. By
September 29, 2014 letter, Employer notified Claimant that the Agreement was
terminated effective September 26, 2014.
Claimant subsequently filed for UC benefits. On October 23, 2014, the
Altoona UC Service Center issued a determination finding Claimant eligible for
benefits under Section 402(b) of the Law.2 Employer appealed, and a Referee
hearing was held. By December 5, 2014 decision, the Referee declared Claimant
ineligible for UC benefits under Section 402(b) of the Law. Claimant appealed to the
UCBR. The UCBR affirmed the Referee’s decision. Claimant appealed to this
Court.3
Claimant argues that the UCBR erred by concluding that he voluntarily
quit his employment without a necessitous and compelling reason. Claimant
specifically contends that since Employer’s failure to pay him in a timely manner
resulted in his financial hardship and, consequently, caused transportation issues, his
separation was not voluntary. We agree.
2
On September 8, 2014, the UC Service Center issued a determination finding Claimant
eligible for benefits under Section 402(e) of the Law, 43 P.S. § 802(e) (relating to discharge for
willful misconduct). The UC Service Center later vacated and then reissued its determination on
October 23, 2014 finding Claimant eligible for benefits under Section 402(b) of the Law.
3
“Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence.” Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).
2
“In unemployment compensation cases, the claimant has the burden of
proving eligibility for benefits. . . . Where a claimant has voluntarily terminated his
work, the claimant bears the burden of proving that such termination was with cause
of a necessitous and compelling nature.” Petrill v. Unemployment Comp. Bd. of
Review, 883 A.2d 714, 716 (Pa. Cmwlth. 2005) (quoting Pacini v. Unemployment
Comp. Bd. of Review, 518 A.2d 606, 607 (Pa. Cmwlth. 1986) (citations omitted)).
Whether an employee has cause of a necessitous and
compelling nature to quit employment is a legal conclusion
subject to appellate review. In order to show necessitous
and compelling cause, ‘the claimant must establish that: 1)
circumstances existed which produced real and substantial
pressure to terminate employment; 2) like circumstances
would compel a reasonable person to act in the same
manner; 3) []he acted with ordinary common sense; and 4)
[]he made a reasonable effort to preserve h[is]
employment.’ Fitzgerald v. Unemployment [Comp.] [Bd.]
of Review, 714 A.2d 1126, 1129 (Pa.Cmwlth.1998)[.]
Comitalo v. Unemployment Comp. Bd. of Review, 737 A.2d 342, 344 (Pa. Cmwlth.
1999) (citation omitted).
At the Referee hearing, Claimant testified that he was due to receive his
pay for work hours between August 4st and 12th on August 15, 2014. Claimant
explained that when he did not receive his August 15, 2014 paycheck, he spoke to
Employer’s Sales Support Specialist Kevin Perry (Perry), Vice President of
Consulting Andrew Rosenberger (Rosenberger) and Managing Partner Nick Robak.
Claimant recounted that Perry, Rosenberger and Robak looked into the situation and
told him that there was a payroll issue to be worked out. Claimant recalled receiving
a check, issued outside Employer’s payroll system, approximately 3 or 4 days later.
Claimant described that the same situation occurred when his August 30 th paycheck
was due, but after receiving the second out-of-payroll check, Perry notified Claimant
that Employer could no longer pay him in that manner and that he would have to wait
3
30 days (until approximately September 30, 2014) for his next check, due to
“problems with the onboarding process when they first hired [him] and there was
some mistakes with the way the cycles were getting in their payroll system.”
Certified Record (C.R.) Item 12, Notes of Testimony, December 5, 2014 (N.T.) at 8.
Claimant described telling Perry that due to his family expenses and his train costs,
waiting a month for his next paycheck would be a problem for him, so Perry and
Rosenberger agreed to work on a solution.
Claimant recounted that he talked to Perry, Rosenberger and Robak
again after he was not paid on September 15, 2014. Claimant testified that
Rosenberger told him there was nothing more Employer could do, and that
Employer’s finance department refused to issue another non-payroll check. Claimant
recalled sending Employer a notice stating that if the problem is not worked out, he
would not be able to get to work due to lack of resources. Claimant asserted that he
depended upon a timely paycheck “for resources to get to work and to . . . continue to
work.” N.T. at 6. Claimant disclosed that he eventually received his September pay
on October 15, 2014.
Claimant contends that his understanding of how he would be paid
initially came from Employer’s representative Carrie Sweeney (Sweeney). Claimant
maintains that Sweeney told him the date on which his pay commenced “depended on
how fast [he] got put into their Harvest System[].” N.T. at 19. Claimant described:
[L]et’s say I work . . . [8/4] through [8]/12[,] as long as
everything is submitted and approved by that Friday[,] I
would receive my pay on the 15th and be in their schedule.
When this didn’t occur[,] . . . the problems began. And I
have e-mails and conversation with [Sweeney] going back
and forth that mentioned, you know, when [Employer was]
setting up the Harvest ID confirming that I would get paid
on [8]/15 now that this is in now.
4
N.T. at 19. Claimant declared that although Employer initially did not claim his
understanding was incorrect, “[l]ater when [he] didn’t get paid and . . . [they] started
talking about the problems[,] then things started to change. Then . . . [he] was getting
fuzzy information.” N.T. at 19. According to Employer’s Team Information Sheet,
paychecks are deposited “on the 15th and the last day of each month.” C.R. Item 2,
Team Information Sheet at 2.
Claimant acknowledged that Employer “tried [its] best to work with
[him] but . . . ultimately . . . there was a lot of confusion with [its] onboarding process
and [it] tried to fix it.” N.T. at 20. Claimant informed the Referee that everything
else about the job “worked well.” N.T. at 11. Claimant submitted no documentary
evidence of financial hardship.
Perry confirmed that Claimant informed Employer during the week of
September 21, 2014 that he would no longer work for Employer due to “lack of
timely payroll[.]” N.T. at 15. Perry also testified:
EL [Employer’s Lawyer] . . . When [Claimant] first came
on board[,] were there any discussions about the timing of
payment after he submitted an invoice?
[Perry] There was[,] and it was communicated that it would
be two weeks from when he started or when his last day of
the payroll cycle would be.
EL Okay.
[Perry] So[,] from the first of the month to the 15th. . . , any
of those hours we pay at the end of the month, last day of
the month.
EL Okay, so he was told from the very beginning that there
would be the half-month lag so he was to submit an invoice
for the 1st through the 15th and then that would be paid at
the end of the month and that he was told that from the very
beginning?
[Perry] Yes.
5
EL Okay. And how did it come that he was -- that these
special checks were cut?
[Perry] Because he was upset then we thought that there
was miscommunication and we wanted to keep him happy
so we . . . cut a check right after the 15th, right after that first
pay period. We did that again following at the end of the
month and then communicated to him we can’t keep this
process going. We weren’t in the wrong in the first place.
We were just trying to cut the checks sooner and[,] to get
back on the original schedule[,] we would have to wait, you
know, he was already prepaid up front so the next paycheck
according to the original schedule would be September 30 th.
N.T. at 16. Perry stated that Employer did everything it could do to resolve
Claimant’s concerns, and if Claimant had continued reporting to Independence Blue
Cross, his relationship with Employer would have continued.
“In unemployment compensation matters, ‘the [UCBR] is the ultimate
fact finder and is empowered to resolve conflicts in the evidence and to determine the
credibility of witnesses.’” Goppman v. Unemployment Comp. Bd. of Review, 845
A.2d 946, 947 n.2 (Pa. Cmwlth. 2004) (quoting Owoc v. Unemployment Comp. Bd. of
Review, 809 A.2d 441, 443 (Pa. Cmwlth. 2002)). “Findings made by the [UCBR] are
conclusive and binding on appeal if the record, examined as a whole, contains
substantial evidence to support the findings.” Umedman v. Unemployment Comp.
Bd. of Review, 52 A.3d 558, 563-64 (Pa. Cmwlth. 2012) (quoting Owoc, 809 A.2d at
443). “Substantial evidence is evidence which a reasonable mind might accept as
adequate to support a conclusion.” Id. at 564 (quoting Wheelock Hatchery, Inc. v.
Unemployment Comp. Bd. of Review, 648 A.2d 103, 105 n.3 (Pa. Cmwlth. 1994)).
This Court has held:
In deciding whether there is substantial evidence to support
the [UCBR’s] findings, this Court must examine the
testimony in the light most favorable to the prevailing party,
in this case, the Employer, giving that party the benefit of
any inferences which can logically and reasonably be drawn
from the evidence.
6
Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
Based upon the evidence presented in this case, the UCBR found, in
relevant part:
4. [Claimant] believed that he would be paid the 15 th and
the 30th of the [m]onth.
5. [Employer] informed [Claimant] that he would be paid
for his first two weeks of work in a month on the 30 th and
every two weeks thereafter.
6. [Employer] did provide [Claimant] an early check on the
first and second pay period to address [Claimant]’s
confusion and concerns.
7. Thereafter[,] [Employer] informed [Claimant] he would
have to be on the regular payroll schedule which would
result in [him] . . . being paid two weeks later.
8. [Claimant] informed [Employer] he would require
regular payments to remain working in his assignment with
Independen[ce] Blue Cross.
UCBR Dec. at 1. The UCBR concluded:
[Claimant] has unfortunately failed to meet his burden of
proof in this proceeding. While [Claimant] asserted that he
was not paid timely, the [UCBR] must conclude based on
the credible testimony of [Employer] that the regular
pay period was to submit time for a two[-]week period
to be paid the following pay period. Thus, [Claimant]
would have to wait a month to be paid under the normal
plan of [Employer]. Thus, this fails to establish a
necessitous and compelling reason to quit. We next turn
our attention to [Claimant]’s assertion that he had bills and
could not wait a month for his pay. Unfortunately,
[Claimant] has failed to provide the specific testimony
and evidence that would support such an allegation or
what steps he made to address any temporary concerns of
finances until he was on a regular pay schedule with pay
7
every two weeks.[4] We are therefore constrained to deny
benefits under Section 402(b) of the Law.
UCBR Dec. at 2 (emphasis added).
The UCBR’s conclusion that Employer’s failure to timely pay Claimant
in this case was not a necessitous and compelling reason to quit is contrary to the law.
This Court has held:
Where an employee terminates an employment relationship
because of the employer’s repeated failure to pay wages in a
timely manner and on an established pay day,
Pennsylvania’s Wage Payment and Collection Law[5] is
implicated. Section 4 of the Wage Payment and Collection
Law generally provides:
It shall be the duty of every employer to notify his
employes at the time of hiring of the time and place
of payment and the rate of pay and the amount of
any fringe benefits or wage supplements to be paid
to the employe . . . or . . . for the benefit of the
employe[]. . . .
43 P.S. § 260.4. Moreover, Section 3 of the Wage Payment
and Collection Law is absolutely explicit in its statement
that: ‘Every employer shall pay all wages . . . due to his
employes on regular paydays designated in advance by the
employer.’ 43 P.S. § 260.3. Thus, employees are well
within their rights to demand timely payment for work
performed. Indeed, payment as agreed for services
rendered is the very essence of an employment relationship,
such that no employee can be compelled to work without
payment.
4
Claimant supplied e-mails of Employer’s purported misrepresentations and documentation
of his alleged financial hardship for the first time on appeal to the UCBR. See C.R. Item 14; see
also N.T. at 19; Claimant Br. at 10. Although referenced therein, no such documentation was
attached to his brief to this Court. Notwithstanding, “[f]or purposes of appellate review, that which
is not part of the certified record does not exist. Documents attached to a brief as an appendix or
reproduced record may not be considered by an appellate court when they are not part of the
certified record.” B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (citation
omitted). Consequently, this Court would likewise be precluded from addressing those documents.
5
Act of July 14, 1961, P.L. 637, as amended, 43 P.S. §§ 260.1–260.12.
8
Furthermore, Section 7 of the Wage Payment and
Collection Law clearly states: ‘No provision of this act shall
in any way be contravened or set aside by a private
agreement.’ 43 P.S. § 260.7. . . . [I]t is clear that under the
cited provisions of the Wage Payment and Collection Law,
erratic and intermittently late payments are unacceptable as
a matter of law.
Accordingly:
This Court has held that several instances of tardy
wage payments resulting in employee protest and
refusal by the employer to guarantee timely
payment of wages as demanded by the employee
can constitute necessitous and compelling cause for
that termination.
Warwick v. Unemployment Comp. Bd. of Review, 700 A.2d
594, 597 (Pa. Cmwlth. 1997) (citation omitted).
....
This Court’s opinion in Warwick indicates, without
examination of the Wage Payment and Collection Law, that
claimants must request a guarantee of adherence to a rigid
payment schedule after protesting tardy payments in order
to retain eligibility for unemployment compensation. See
Warwick, 700 A.2d at 597 (citing Koman v. Unemployment
Comp. Bd. of Review, . . . 435 A.2d 277 ([Pa. Cmwlth.]
1981)). Given that the Wage Payment and Collection
Law already requires adherence to a rigid payment
schedule, we hold that it is sufficient for employees to
complain of late payments, so long as the employer is
afforded a reasonable opportunity to address the
employee’s complaints.
Clearly, failure to make timely payment for services
rendered creates a real and substantial pressure upon
an employee to terminate employment. Without
question, repeat occurrences would cause a reasonable
person to terminate employment.
Shupp v. Unemployment Comp. Bd. of Review, 18 A.3d 462, 464-65 (Pa. Cmwlth.
2011) (emphasis added).
9
The record evidence in the instant case established that Employer failed
to timely pay Claimant for his services. Claimant twice notified Employer and
accepted non-payroll checks in an effort to preserve his employment. It was not until
Employer notified Claimant that he would have to wait yet another 30 days for his
pay that Claimant voluntarily quit. Accordingly, under the specific circumstances of
this case, the UCBR erred as a matter of law by concluding that Claimant voluntarily
quit his employment without a necessitous and compelling reason.
For all of the above reasons, the UCBR’s order is reversed.
___________________________
ANNE E. COVEY, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin E. Jacobs, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 484 C.D. 2015
Respondent :
ORDER
AND NOW, this 21st day of December, 2015, the Unemployment
Compensation Board of Review’s March 11, 2015 order is reversed.
___________________________
ANNE E. COVEY, Judge