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Archive for the month “November, 2013”

Happy Thanksgiving!

I hope anyone reading this has a happy Thanksgiving!  It is a great time of the year to count your blessings, so as you draw up your chair to enjoy your Thanksgiving meal, please take a few minutes to thank God from whom all blessings flow.

I have to admit that I am not a huge fan of the Thanksgiving celebration (i.e.: the meal), mainly because I am one of the few people who really does not get all that excited about the traditional turkey dinner.  Unfortunately, I am something of a pedantic and borderline-obsessive-compulsive person so, despite not really liking the traditional Thanksgiving dinner, I, ironically, really would not feel comfortable having any other dinner served on Thanksgiving.

I like Thanksgiving mainly because of the parades and festivities that all point to Christmastide, which, like most people, is probably my favorite holiday season.  As an OCD-type person, I refuse to engage in any Christmas frivolity (except for shopping) before Thanksgiving, so, for me, no decorations or music or anything else Christmas before Thanksgiving!  As a result, Thanksgiving is sort of a gateway into Christmas and is fun for me for that reason.  Coincidentally, Thanksgiving is almost always near the First Sunday in Advent, which is the Christian season of preparation for the coming of the Christ-child.

I am also a very nostalgic person with a great respect for history and tradition.  Although I am proud to be an American, I am often disappointed that our country is so young; but Thanksgiving is pretty old for American standards as far as civic holidays are concerned.  Thanksgiving is a great way for me, at least, to feel connected to the American past.  I just think it is so neat to commemorate and celebrate something that happened in 1621!  For me, as an American at least, that is pretty old!  I will, God willing, be alive for the 400th Anniversary of Thanksgiving; how cool will that be?

Anyway, all of this to say: Happy Thanksgiving and thanks be to God for all of the blessings he has bestowed upon us over the past year!

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More Work for Unemployment Compensation Lawyers in the Near Future?

When one applies for unemployment compensation benefits, there are generally two potential opponents: the claimant’s previous employer and/or the Department of Labor itself. Obviously, an employer can oppose claims for unemployment compensation benefits on bases such as the claimant voluntarily quitting or being fired for willful misconduct. However, even if an employer takes no action to oppose a claimant, the Department of Labor can. For example, the Department of Labor can oppose a claim if, upon its review of a claimant’s application for benefits, it appears that the claimant would be ineligible under the law based on the claimant’s own representations on the application. Unfortunately for claimants, it appears that the Department of Labor will be scrutinizing their applications closer than ever in the foreseeable future.

According to a recent article in The Philadelphia Inquirer, Pennsylvania’s unemployment compensation fund was in the red by approximately $300 million in 2011. Although currently trying to borrow money to meet the current demand for benefits, legislators in Harrisburg are now searching for ways to close the gap, and due to the current political climate, raising taxes does not seem to be among the options being considered. Instead, one of the solutions that is gaining some traction is to withhold benefits from claimants who are not very “attached” to the economy. In other words, earning the bulk of one’s income over a very short period of time may cause issues with one’s eligibility, as there may be a preference for more evenly compensated employment over a longer period of time. Of course, this potential change would likely affect the underemployed more than others, as they tend to work shorter-term jobs.

Regardless of how the Pennsylvania Legislature resolves the unemployment compensation fund’s solvency problems, its desired result is to reduce the number of eligible claimants by 10 percent, or approximately 50,000 people. This will potentially affect unemployment compensation practitioners, as each denied claimant will have the right to appeal his or her denial to a hearing before a referee and beyond. Of course, claimants can be represented by an attorney to help them through such appeals and/or hearing appearances. Therefore, these new changes could also potentially increase the unemployment compensation practitioners’ caseload by up to 10 percent as more claimants may retain them to litigate the increasing number of adverse decisions against them by the Department of Labor.

Originally published on June 8, 2012 in “The Legal Intelligencer Blog” and can be found here.

Reproductive Choice in Modern America: It’s all on Women

I am an internet surfer and one of the great things about web surfing is that the waves can take you anywhere if you let them, which can often result in seeing something you never would have otherwise.  So, with that mind and after clicking from one thing to another yesterday, I found myself somehow, and rather unexpectedly, at the Youtube channel of a guy called Walter Lee Hampton, II, specifically the video you can find here.  This video inspired me to write this post.  As many of you know, a large part of my law practice is child custody, so I have become very interested in various points of view regarding the conception and rearing of children and human sexuality, and its/their effects, as they are something I deal with on a daily basis.  Now, while Mr. Hampton’s video deals with the black community specifically, it made me realize something which applies to all American communities.

It does not take a high school health teacher to tell you that the reproduction of children involves three steps which are essential to every act of reproduction which has ever occurred in human history: (1) the act of heterosexual sex (presuming the child is not conceived using artificial means); (2) the lack (or failure) of contraception; and, (3) allowing the pregnancy to go full term without aborting it.

Now, from my own Judeo-Christian point of view, all three of the above-steps are clearly defined and a joint effort.  From the Judeo-Christian view point, sexual relationship takes place exclusively within the bonds of heterosexual matrimony and is the physical expression of the marital love enjoyed and experienced by the couple.  The act is mutually entered into by the couple.  Men are called to respect a woman’s wishes if she wants to refrain from sex while women are called not to unreasonably withhold sex from a man even at times when she would rather not have sex.  It is a beautiful example of self-giving and self-restraint, both in the spirit of love for the other.  From the Christian view point, forcing sex is never acceptable in any context. The message is loving self-giving and self-restraint where the man always lovingly respects the “no” and the woman lovingly assents at times even when she’d rather not. The teaching of the Church is clear on these issues: mutual yielding and loving and assenting.  Birth control is something many in the Judeo-Christian tradition do not use out of principle but, if they do, it is a jointly made decision in the marriage relationship through loving consideration of one another.  Of course, terminating the pregnancy, absent a real threat to the mother’s life, is simply not an option.

Now, Mr. Hampton’s video’s theme was to lay the blame for the multiplicity of children, particularly those millions of children born into impoverished and/or single parent environments, in the black community exclusively at the feet of that community’s women.  From my own Judeo-Christian viewpoint, my initial reaction was revulsion as it is the presumption of my own worldview that both men and women are responsible for the act of sex and the children it produces; however, upon reflection, I came to realize that Mr. Hampton’s video really reflects the new sexual reality that has been ushered in by the new secular and/or liberal worldview that is becoming more and more prevalent in America.

In our new secular liberal America, the necessity of marriage before sex is viewed as a quaint, but rather outmoded, cultural standard which has no relevance any longer.  Therefore, all of the joint decision making that goes into deciding to have a child, which is presumed and required within the Judeo-Christian paradigm, no longer applies.  This observation made me realize that reproductive choice then must largely reside with men or women, but not really both as, per the above, the marriage  (or really any) relationship prior to conception can no longer be presumed.  While men do still have some “choice”, inasmuch as they can choose not to have sex with women (or use a condom), the reality is that our society, through cultural and legal change, have placed the vast lion’s share of reproductive choice into the lap of exclusively women.  As a result, though I, from my Judeo-Christian viewpoint, disagree with Mr. Hampton’s thesis, I can see its logic when I view it through the new secular liberal paradigm which is becoming, if it is not already, the norm in America.

Let’s go back to the three steps I described above: (1) the act of heterosexual sex (presuming the child is not conceived using artificial means); (2) the lack (or failure) of contraception; and, (3) allowing the pregnancy to go full term without aborting it.  I will deal with each one (1) at a time below.

(1) Sex: it probably goes without saying that a man will have sex when given the opportunity; women, not so much.  Sure, a man can choose not to have sex with a woman if he wishes not to have children, however in an era where requiring sex to be exclusively within marriage where reproduction is a joint venture is viewed as something from the dark ages, choosing not to have sex with women closes a heterosexual man off from the act of sex entirely.  In fact, I would go on to say that, in the modern American cultural milieu, society views a man who elects to refrain from sex as weird, a loser (how many jokes are made at the expense of an older virgin?), and/or a deviant, among other things; not to mention, of course, the absolute saturation in our society of sexual imagery, references, expectations, and prevalence.  So, do heterosexual men in this context truly have a free “choice” not to have sex with women?  Women are ultimately the gatekeepers to whether men have sex with them.  The law, as it currently stands, makes it clear that the act of sex is the choice of women.  We have all heard that “no means no”, right?  Who says “no”?  Women do; not men.  When a woman says “no”, sex will not occur regardless of whether a man says “yes” (absent rape of course).  Indeed, from a man’s point of view in America, there is no concept of  “a man’s ‘yes’ means yes'” (as this is likely rape) and there is certainly no concept of  “a woman’s ‘no’ means ‘yes'” (as that is certainly rape).  In fact, rape almost always one directional: men forcing women to have sex.  Although there are cases of women raping men, the overwhelmingly vast majority of rapes are when men rape women.  Women are the sexual gatekeepers; it is a woman’s choice not to have sex regardless of the choice of the man she is with at the time.  In fact, it just occurred to me, this is also virtually always the case with artificial (unmarried) pregnancies as well.  There are a multitude of stories of women going to a sperm bank to have a child as a single mother; this may date me, but I think of the “trail blazing” of Murphy Brown in this way over twenty (20) years ago.  I cannot think of a single story of a man going to an egg bank in order to become a single father; can you?

(2) Contraception: Men certainly have the choice to use a condom during sex, but there is no public policy which suggests condom use is somehow valued or required in American culture.  Public policy, when it comes to female birth control, is far far different; public policy favors female contraception availability/use.  Under secular liberal public policy, employers and health insurance companies must provide birth control to women regardless of their choice to refuse it.  In fact, under the Affordable Care Act, female contraception is largely free; therefore, a woman has no excuse not to use contraception if she does not want to conceive a child as she has been given almost every advantage to secure and use it.  Furthermore, a man has no control over whether a woman uses or does not use contraception.  The use of a condom is pretty obvious.  A woman cannot be fooled into thinking a man is using a condom when it is not and, as the sexual gatekeepers (see above), a woman can refuse sex without (or indeed with) a condom.  Therefore, the ultimate control over condom use is in the woman’s hands.  A man has no choice as to whether a woman decides to pop a birth control pill and a man is at the mercy of a woman to trust her when she represents that she has used birth control when, in reality, she has not.

(3) Abortion:  This is the big one.  If a woman decides to have sex and not use contraception, she may conceive a child.  Once a woman conceives, public policy is very very clear: the decision to carry the child to term or abort the pregnancy and kill the baby is exclusively within a woman’s control and choice.  The man who provided half the genetic material for the baby and participated in his/her conception has no choice as to whether the baby lives or is aborted.  Indeed, neither the woman’s doctor nor the woman’s family nor her religious community nor the state can choose for the woman to abort the baby or allow the baby to live.  The choice to give birth to a conceived child lies absolutely only with a woman.  Not only that, public policy now, through the Affordable Care Act, dictates that heath insurance must provide abortion as part of its coverage, which only facilitates a woman’s “choice” to abort – apart from a man’s – even more than before.

Based on the above, I think it is pretty clear: from the secular liberal point of view, while men have some choice, when it comes down to it, women have the overwhelming and, indeed, the ultimate choice to have children.  The sexual relationship, and especially as it relates to the reproduction of children, is not at all an equal one.  If women believe it was unequal in the past (favoring men), the pendulum has swung the opposite direction where it is now entirely unequal in favor of women.  We, as a society, need to reacquaint ourselves with, and apply, the Judeo-Christian principles I described above if we want sexual/reproductive equality and, indeed, to improve our society (though that is a topic for another post).  All of the dysfunction and perversion of the sexual relationship and reproduction of children described above all comes down to the lack of application of Judeo-Christian moral principles.  The choice to have a child is truly the choice of a man and woman in a marriage; any other context of sex and child conception is disordered and suffers from the entirely confused, destructive, and disordered logic that liberal secular society has to offer as described above.  As sex is now socially acceptable in practically any context – and divorced from marriage and commitment – the man is no longer under any obligation to protect a woman from her own body (i.e.: conception).  I use this term “her own body” intentionally as abortion advocates constantly remind us that no one can tell a woman what to do with “her own body.” Under the liberal secular worldview, we are all now lone wolves out there doing our own thing and it is up to to the woman to protect herself and we, as a society, have given her all the tools to do it over that of a man: (1) the ultimate trump card (i.e.: “no”); (2) free contraception; and, (3) the right to unilateral abortion.

To be clear, the conclusions I reach above are those which are the logical conclusions of the secular liberal worldview, to which I am fundamentally opposed.  Until we, as a society, can reclaim Judeo-Christian sexual morality, women are now in almost absolute control of human reproduction in America and, therefore, they are to blame for the multiplicity of children being born into impoverished and/or single parent households, and other similar social ills relating to reproduction of children.  You cannot blame men: they did not have a choice.

Internet Overload

Check out Faye Cohen’s blog post “Internet Overload” on her blog Toughlawyerlady here.

Child Custody Litigation and Settlements: Leading Lawyers on Establishing Successful Co-Parenting Arrangements and Educating Clients on the Trial Process

Faye Riva Cohen, Esquire and I are co-authors of a just released book in the “Inside the Minds” series called “Child Custody Litigation and Settlements: Leading Lawyers on Establishing Successful Co-Parenting Arrangements and Educating Clients on the Trial Process”. You can learn more about it on Amazon here!

A Judge’s Dishonorable Friends

Two New Jersey judges, Raymond Reddin and Gerald Keegan, are the subject of ethics complaints due to the company they allegedly keep.

 

Anthony Ardis, a former official Passaic Valley Sewerage Commission, was indicted by a state grand jury in 2011 for alleged misconduct and various crimes such as directing staff workers to do personal work for him.  Mr. Ardis is also friends with the two aforesaid judges.

 

Judge Reddin is a childhood friend of Mr. Ardis and Judge Keegan has been his friend for some twenty-five (25) years.  The three (3) men are members of the Cathedral of Saint John the Baptist Roman Catholic Church in PatersonNew Jersey.  In addition, they founded what appears to be a healing ministry of the Cathedral called Bartimaeus Family which was inspired by the battle of cancer suffered by Monsignor Mark Giordani.  The three (3) men would have dinner and attend Mass at the Cathedral each Thursday along with as many as thirty (30) other people.

 

Despite the indictment of Ardis, the two (2) judges continued participating with Bartimaeus Family while simultaneously sitting as judges in the same Court district as indicted Mr. Ardis, and therein lays the rub when it comes to members of the judiciary.  The New Jersey Advisory Committee on Judicial Conduct alleged that the judges’ continued attendance at meetings of Bartimaeus Family with Mr. Ardis created an appearance of impropriety and had concerns that the integrity of the judiciary would, therefore, be compromised.  Canon 1 of the Code of Judicial Conflict, which requires judges to maintain high standards of conduct, as well as Canon 2A, which requires judges not to take an action which compromises the confidence and integrity in the judiciary, and Canon 5A(2), which requires a judge’s extrajudicial activities not demean the judicial office, were all citied to justify the ethics complaints about the judges.

 

This matter is still developing as the criminal case against Mr. Ardis is still ongoing and the judges will presumably respond to the allegations made against them.  Of course, there is denial of impropriety all around and, in fact, Judge Reddin has been a highly rated jurist in the past.

 

This situation illustrates the predicament in which judges often find themselves.  In order to remain compliant with the expectations to avoid even the appearance of impropriety, it would seem that judges must choose between their position and things that are potentially innocent and innocuous like maintaining contact with a lifelong friend or attending a church or community group which may happen to also have someone of questionable repute among its membership.  Does a judge have to give up friendships?  Does the judge endorse his friend’s or the other member’s conduct?  Indeed, does he even know the member or about his conduct?  Perhaps not, but situations such as the one described above make it clear that a judge must remain ever vigilant, perhaps even to the point of avoiding public contact with certain people, in order to ensure full compliance with the expectations upon them and their office, including the codes of conduct applicable to their jurisdictions.

Hearing from the Deaf

recently discussed in this space how technology has aided attorneys in their representation of the deaf. Since that time, I have received some feedback that I think is worthwhile to share.

When it comes to language, while the deaf and hearing use the same written form of English, when “spoken,” American Sign Language employs very different forms of syntax, expression, word order and grammatical structure as compared to spoken English. As a result, sometimes, especially with deaf people older than the so-called Generation X, the norms of spoken American Sign Language become intermingled with a deaf person’s written English, often to the extent that it causes a language barrier. Therefore, practitioners must be sensitive when communicating with a deaf person and realize that sometimes written communication may not be as effective as it would be with a hearing person.

In addition to the above, a common misconception among the hearing is that the deaf can simply lip read in order to effectively communicate. Unfortunately, lip reading is a very inexact science, withmany words unsuccessfully read during a typical conversation. Even if the general gist of an attorney’s point is communicated, this is insufficient, as legal advice is generally fairly complicated and requires, as much as practicable, the full understanding of the client and not simply getting the gist across. Besides, not all deaf people have the skill of lip reading; presuming that they do is simply a hearing person’s stereotype of the deaf.

The Americans with Disabilities Act prohibits an attorney from denying services because of an “absence of auxiliary aids and services.” These services include a sign language interpreter; however, a firm is not required to use an interpreter if it would result in an “undue burden.” While the cost for the interpreter is to be absorbed by the attorney, an attorney may bill for the extra time it may take to effectively communicate with a deaf client. In order to offset some of these costs, the Pennsylvania and Philadelphia bar associations established the Interpreter Access Fund. In addition, it may be possible to secure a tax credit for an attorney’s special expenditures to serve a deaf person pursuant to the Disability Access Credit.

Finally, a variety of organizations exist to help the deaf navigate the legal system and achieve justice. These organizations include the Disabilities Rights Network, the Pennsylvania School for the Deaf, the Legal Clinic for the Disabled, the National Association for the Deaf, and deaflegal.org. It is worthwhile for an attorney to investigate each of these if one intends to represent the deaf on a regular basis.

Originally published on May 18, 2012 in “The Legal Intelligencer Blog” and can be found here.

It’s Roommate Remorse Season!

Virtually every business has seasons of peaks and valleys and ebbs and flows.  If you are an attorney with a landlord/tenant practice, October is roommate remorse season, especially in the Philadelphia area.

 

The Philadelphia area is home to a number of colleges and universities within a reasonable driving distance, and many (most?) of the students at these institutions choose to live in off-campus housing, generally renting an apartment or a house.

 

Many of these students, in order to save money and/or to enjoy the college experience with others, have roommates with which to share the costs of rent and other living expenses.  Unfortunately, many of these students either have an unexpected crisis, have second thoughts on the college experience (or at the very least, have second thoughts on living away from home), and/or did not vet their potential roommates very well.

 

When the above-issues arise, it seems most often in October, which is about 6 to 8 weeks into the college/university academic year, which causes at least one of the roommates in a living situation to reevaluate his decision to live with his roommates and/or in this particular property and/or away from home at all.

 

The legal issue at play here is the effect that all of this roommate drama has on leases.  Most of the time, the roommates all execute the same lease to become co-lessees of the same property, commonly called a leasehold.  Leases for college students generally last a year in order to allow the tenants time to complete their studies.

 

Here is a common scenario: let us say three Drexel co-eds elect to room together in an apartment off campus.  They all move in together sometime in August in time for the academic year to begin.  Around October something happens; for example: one of the girls clearly is not getting along with the other two; or one of the girls realizes college (or perhaps Drexel) is not for her; or one of the girls loses her job; or one of the girls must return home because of a family crisis; or the roommate that was her friend takes on a whole new and unexpected dimension now that they live together; or really any number of unexpected things like this.  When something like this happens, one of the roommates will very often simply bail out of the leasehold.  So, in the scenario above, let us say that one of the three Drexel co-eds realizes that college is just not for her.  What does she do then?  Well, very often she will simply apologize to her roommates, pack up her stuff, load up a U-Haul, and head back home.  As a result, the lease for the leasehold, which had three tenants sign, is now being paid for and fulfilled by only two.  An important thing to remember is this: the roommate who left is as equally responsible for the lease as the two remaining roommates regardless of her leaving.  Very often, the rent intended to be shared by three roommates now cannot be afforded by only two roommates.

 

What remedies do the two remaining roommates have?  Initially, they could ask their landlord to allow them to break their lease early and without penalty.  Many landlords, especially those near college and universities, have seen sets of roommates implode before and just consider it as a cost-of-doing-business as a landlord of college students.  If the landlord refuses to allow the lease to be broken, the remaining roommates will be left in a much more difficult situation.  If the remaining roommates can ensure the rent and expenses are paid in full and on time, then they have won at least half the battle as they will not have conflict with the landlord (or at least not regarding these issues).  The remaining roommates are free to sue the roommate who left for breaching the lease and request her share of the rent that she would have paid had she remained.  If the remaining roommates cannot afford the rent and expenses, they will likely be sued by the landlord for the unpaid sums as well as for their eviction.  If this happens, the landlord will, in all likelihood, sue all three roommates regardless of whether one left.  The remaining roommates have the right to file cross claims against the roommate who left in an attempt to deflect at least part of their liability to the landlord to the roommate who left.  This does not mean that the remaining roommates will not be liable to the landlord, it merely means they can pursue the landlord who leaves to try and recoup their losses to the landlord.

 

Now, it is worth pointing out that the above example is what happens when someone bails on a lease.  Sometimes one roommate makes living with the other roommate so miserable for the other roommate that he is forced to leave.  Unfortunately, the roommate who is the “victim” in this scenario is still a party to a lease regardless of whether his roommate made things unbearable.  Therefore, if the “victim” leaves, he will still be liable for his share of the rent and expenses both to the landlord and his former roommate.  Indeed, if roommates do not get along, that is no reason why an innocent landlord ought not receive the rent he contracted to receive.  The “victim” roommate’s remedy is to try and prove in landlord/tenant court that his roommate made the leasehold unreasonably uninhabitable, but even this is generally frowned upon and a difficult basis on which to win, especially as it is often devolves into a “he said / she said” situation.

 

Naturally, all of this is unwelcome stress and hassle and should serve as a cautionary tale.  When someone chooses roommates, it is wise for the students to fully evaluate and vet them as much as possible in order to do their best to avoid unfortunately situations as described above.  It is also important to go into these situations with eyes wide open to the distinct possibility that one roommate may be left holding the bag (i.e.: the responsibilities under the lease) after his roommate(s) bails on him.  Finally, when entering into a lease with roommates, it may be worth attempting, along with the landlord, to draft/couch the lease in terms which specifically lay out the responsibilities of each tenant.  For example, if rent is $1000 for four roommates, it would be helpful, if the landlord allows it, to specifically indicate each roommate is liable for $250 per month in order to limit potential liability in the future.

The Benefits from Sleeping on the Job

Being caught sleeping on the job is almost always grounds to be fired from one’s job and, as a result, being denied Unemployment Compensation; however the recent case Philadelphia Parking Authority v. Unemployment Compensation Board of Review would seem to indicate otherwise in certain circumstances.

The unemployment compensation claimant in the matter-at-issue, Charlene L. Henney (hereinafter “Claimant”) worked the 3:30pm to midnight shift for the Philadelphia Parking Authority (hereinafter “Employer”). Due to the late hours, and the lack of work for her to do, she would occasionally become drowsy. In order to combat her drowsiness, she often requested additional work from Employer for her to do. Despite the Claimant’s efforts to secure additional work, Employer failed to provide any save on two occasions. Claimant eventually developed some health problems, was hospitalized, and diagnosed with sleep apnea.

On at least four separate occasions Claimant fell asleep during her 3:30pm to midnight shift. Employer terminated Claimant’semployment and contested her application for unemployment compensation. At an unemployment compensation referee’s hearing, Employer argued that Claimant committed willful misconduct and demonstrated that Claimant slept on the job, that it had a specific work rule proscribing sleeping on the job of which Claimant was aware, and that it was Claimant’s alleged violation of the rule against sleeping on the job that caused her to be terminated. In response, Claimant did not deny sleeping on the job. Instead, she testified that she suffered from sleep apnea which caused involuntary sleeping. In addition, she further testified that she requested additional work from Employer in order to help her remain awake during the late hours of her shift and Employer failed to provide the work requested.

In making its decision, the Court had to determine what constitutes willful misconduct. In its review of the applicable law, the Court noted that willful misconduct requires a wanton, intentional, or willful disregard for an employer’s interests, deliberate violation of an employer’s rules, and/or intentional disregard for standards an employer can expect from an employee. The employer has the burden to prove that the claimant was aware of the work rule and willfully, intentionally, and/or deliberately violated it. A Court is to review all of the claimant’s actions in light of all the surrounding circumstances, including the reasons for non-compliance with the work rule. If the employer can meet its burden as described above, the burden shifts to the claimant who then has the burden to prove that her decision to violate the employer’s work rule was for good cause. A physical illness can constitute good cause to violate a work rule. If the claimant had good cause to violate the work rule, then a claimant can be eligible for unemployment benefits. A claimant’s own testimony can serve a competent testimony to her own medical problems.

The Court ruled that the Employer did not meet its burden of proof. The Court found that the Claimant recognized that working late hours with little work to do made her understandably drowsy. The Court further found that the Claimant acted in a responsible manner by informing the Employer of her lack of work, and drowsiness, by asking for additional work. The Employer had the opportunity to provide the work, but failed to do so. Based on the all of the surrounding circumstances, the Court ruled that Claimant’s falling asleep at her position was not the result of any willful, deliberate, or intentional act but the natural result of late nights with little to no work to do. In other words, the Court ruled that Claimant did not intentionally go to sleep while on duty. Due to the fact that the Employer did not meet its burden, the Court did not have to engage in any analysis into Claimant’s sleep apnea as the burden never shifted to Claimant.

In the final analysis, when it comes to whether a claimant is eligible for benefits, a Claimant must commit willful misconduct to be deemed ineligible. If the action – though misconduct – was not done willfully, then a claimant will be eligible for unemployment compensation benefits, even if that misconduct was sleeping on the job.

Originally published on May 2, 2012 in “Upon Further Review” and can be found here.

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