Zimmerman v. Unemployment Compensation Board of Review

DISSENTING OPINION BY

Judge PELLEGRINI.

I respectfully dissent from the majority’s holding that Sandra Zimmerman (Claimant) is entitled to unemployment compensation benefits even though she failed to disclose to Nursefinders (Employer) at the time she was interviewed for the position that she had executed a non-compete agreement because that failure did not rise to the level of willful misconduct under Section 402(e) of the Pennsylvania Unemployment Law (Law).1 While I recognize the majority’s antipathy to restrictive covenants, the majority is looking at these covenants as an aggressive attorney would look at them, not as an employer who has to pay the fees of aggressive attorneys.

Claimant began her employment with Employer on December 3, 2001, as a client coordinator. Prior to that employment, Claimant had been employed by Medical Staffing Network (MSN) from October 25, 2000 until October 2, 2001. While at MSN, however, Claimant signed a non-compete agreement which stipulated that after leaving MSN, she would not work for a competitor for one year or within a 60-mile radius of any MSN office.2 Claimant did not advise Employer of the non-compete agreement during the interview or *1084hiring process. After hiring Claimant for the client coordinator position, Employer received a letter from MSN’s counsel advising it of the non-compete agreement signed by Claimant. As a result, Employer discharged Claimant on December 19, 2001, for her dishonesty in violation of its policy.

Following her termination, Claimant sought and was granted unemployment benefits by the Office of Employment Security; however, on appeal, the Referee denied those benefits. Claimant then appealed that determination, which the Unemployment Compensation Board of Review (Board) affirmed, finding that Claimant deliberately withheld information from Employer regarding the non-compete agreement, and that her failure to disclose that information constituted willful misconduct pursuant to Section 402(e) of the Law.

On appeal, the majority reverses the Board’s decision, concluding that there was no affirmative duty on the part of Claimant to inform Employer of the non-compete clause during the hiring process. In doing so, the majority focuses on the Pennsylvania courts’ disfavor of non-compete agreements.

Whether non-compete agreements are disfavored by the courts of Pennsylvania is irrelevant, and it also does not matter whether Claimant and, potentially, Employer would have been successful in a lawsuit brought by MSN to enforce the non-compete agreement. All that matters is that such an agreement existed, and that by hiring Claimant, Employer was made vulnerable to a lawsuit. In Navickas v. Unemployment Compensation Review Board, 567 Pa. 298, 304, 787 A.2d 284, 288 (2001), our Supreme Court has stated that employers’ interests and expectations have to be taken into consideration in determining whether there is willful misconduct, defining the standard as follows:

Willful misconduct is not defined in the unemployment compensation statutes; however, this Court has defined willful misconduct in the context of unemployment compensation as: a) wanton or willful disregard for an employer’s interests; b) deliberate violation of an employer’s rules; c) disregard for standards of behavior which an employer can rightfully expect of an employee; or d) negligence indicating an intentional disregard of the employer’s interest or an employee’s duties or obligations.... It is notable that the standard we have articulated makes reference to the employer’s interests, rules, and expectations, and also emphasizes the totality of the circumstances. Implicit in this necessarily flexible approach to determining what constitutes willful misconduct on the part of an individual employee is a recognition of the myriad working conditions and work rules that apply throughout the Commonwealth. Thus, the conduct that rises to the level of willful misconduct may vary depending upon an individual employee’s specific occupation or work situation. (Emphasis added.)

Due to the potential consequences to an employer of hiring an individual who is subject to a non-compete agreement, it is against the employer’s interests and expectations for a potential employee not to disclose the non-compete agreement. Whether a potential employee is restricted by a non-compete agreement goes directly to whether that person is employable for certain positions by certain employers, making it incumbent upon him or her to notify the potential employer of the existence of the non-compete agreement. An omission of such a vital aspect of his or her employability can be equated to the prospective employee providing an untruthful *1085response to a direct question posed by the employer.

In addition to its antipathy to restrictive covenants, the majority also finds that Claimant was not guilty of willful misconduct because she merely “forgot” that she had signed a non-compete agreement. In making that finding, the majority imper-missibly disregards that the Board found that “[Cjlaimant deliberately withheld information from [Ejmployer regarding her non-compete agreement with her prior employer.” Once Employer established that a non-compete agreement existed, the burden shifted to Claimant to establish that she “forgot.” While she testified that she forgot, the Board did not find her testimony credible and found that she remembered what she had signed and that disregarded Employer’s interests and expectations.

Not only does the majority ignore Employer’s expectations and interests in finding that Claimant did not commit willful misconduct and the Boards finding that she did so deliberately, it now establishes a standard that makes it incumbent on an employer to ferret out every piece of information that precludes a claimant from performing the job that the claimant is hired to perform. Under the majority reasoning, a claimant would receive unemployment benefits if he or she applies for a job as driver but does not have a license if employer makes the reasonable assumption that the person applying knows that a driver’s license is necessary and hires that person. Whether a claimant receives unemployment compensation should not depend on a “gotcha” standard.

In this case, Employer hired Claimant in good faith and then a mere two weeks later was threatened with legal action if it did not immediately terminate her employment based on the non-compete agreement Claimant executed with her previous employer that she deliberately withheld from Employer. Because that conduct is not in accord with Employer’s interests and expectations, I would affirm the decision of the Board.

Accordingly, I respectfully dissent.

Judges LEADBETTER and COHN join.

. Employer's facility is located approximately 41 miles from an MSN office.