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Rothstein v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

February 11, 2015

Marc E. Rothstein, Petitioner
v.
Unemployment Compensation Board of Review, Respondent

Submitted December 5, 2014.

Publication Ordered April 29, 2015.

Marc E. Rothstein, Pro se.

Shawn Westhafer, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE LEADBETTER.

OPINION

Page 7

BONNIE BRIGANCE LEADBETTER, JUDGE.

Marc E. Rothstein petitions pro se for review of the Unemployment Compensation Board of Review's order affirming the denial of unemployment compensation benefits. In doing so, the Board affirmed the referee's determination that Rothstein committed disqualifying willful misconduct

Page 8

under Section 402(e) of the Unemployment Compensation Law (Law),[1] 43 P.S. § 802(e), when he failed without good cause to report to his employer that he was arrested and charged with the misdemeanor summary offenses of stalking, harassment, and indecent exposure as required by his employer's policy. After review, we affirm.

The underlying facts are not in dispute. Rothstein worked as a Service Technician for Verizon Pennsylvania, Inc., and his job responsibilities required him to enter the homes of Verizon customers. Verizon had an established policy regarding employee off-the-job misconduct that provided as follows:

Employees must avoid conduct off the job that could impair work performance or affect the company's reputation or business interests. In order for the company to determine whether off the job conduct could impair work performance or affect the company's reputation or business interests, you must promptly report to the VZ Ethics and EEO Guideline: . . . (3) any other arrest pending final resolution or conviction which may affect your ability to perform your job or otherwise affect the company's business interests.

Referee's Finding of Fact (FF) No. 2. Rothstein was arrested and charged with the aforementioned offenses on May 22, 2012, but he did not report his arrest to Verizon. Verizon did not learn of Rothstein's arrest and subsequent conviction of indecent exposure until approximately October 1, 2013, when an employee read a newspaper article detailing Rothstein's conviction. Rothstein was discharged several days later for failing to report his arrest and subsequent conviction.

Before the referee, Verizon's representative, Mr. Buffardi, testified that it is against Verizon's best interest to employ an individual who has been convicted of indecent exposure. Specifically, Buffardi stated: " Marc's a technician and they have to go into customer houses and it's a fairly large liability for the company if someone's convicted of that type of offense." Notes of Testimony (N.T.) at 5, Hearing of January 8, 2015. According to Buffardi, if Rothstein had reported his arrest to Verizon in May 2012, Verizon would most likely have assigned Rothstein to a non-customer based position. Rothstein, who appeared at the hearing without counsel, testified that he did not think he needed to report the arrest and he did not report it on the advice of his union. When asked by the referee why he did not report the arrest to his manager and let the manager decide whether the offense needed to be reported, Rothstein stated: " I discussed it with my Union officials. Verizon is the type of company that kind of shoot[s] first and ask[s] questions after and maybe they felt that I would automatically get fired . . . ." Id. at 8. Rothstein reiterated several times throughout the ...


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