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An employee who was fired for violating his Pennsylvania employer's cellphone policy will not be receiving unemployment compensation (UC) benefits.

The Case

Fabrice Afata Botikotiko worked for his employer from January 2016 until August 2017 as a full-time material handler and assistant machine operator. After he was let go, Botikotiko applied for UC benefits.

The UC service center denied benefits under Section 402(e) of Pennsylvania's unemployment compensation law, which states that an employee may not receive compensation for any week in which the employee's unemployment was a result of willful misconduct connected to the employee's work.

Botikotiko appealed, and a hearing was held before a referee.

After the hearing, the referee issued a decision that found that Botikotiko's employer had a progressive disciplinary policy of which Botikotiko was aware. Under the progressive disciplinary policy, an employee received a verbal warning, a written minor warning, a written major warning, a written major warning with a three-day suspension, and a written major warning with a five-day suspension pending termination.

The referee also found that Botikotiko's employer also had a cellphone usage policy of which Botikotiko was aware, the referee found. Under the cellphone policy, a cellphone used for non-company business was restricted to designated areas during normal break times, including cellphone charging. Non-company cellphones had to be turned off when an employee was not on break and in a designated cellphone area. While at a work station or a job site (or anywhere else in the plant where the employee was responsible for operating equipment), use of a non-company cellphone for emergency calls was not acceptable. Cellphones observed outside a purse, a backpack, a pocket or a lunchbox were assumed in use and, therefore, in violation of the policy.

On May 24, 2016, Botikotiko received a verbal warning for a safety violation.

Two days later, he received a written minor warning for a cellphone policy violation when his cellphone went off during an employee meeting. About nine months later, Botikotiko received a written major warning for a performance issue.

Thereafter, in July 2017, Botikotiko received a written major warning with a three-day suspension for a performance issue and for a cellphone policy violation when his cellphone went off three times during a meeting. Botikotiko was aware his job was in jeopardy, the referee said.

In late July 2017, after Botikotiko's lunch break, a meeting was held with employees, including Botikotiko, in the cafeteria, a designated cellphone use area. Botikotiko's employer's cellphone use policy applied during the staff meeting, even though it was held in the cafeteria, because the break period had ended and the meeting took place during work hours.

As the meeting ended, Botikotiko's cellphone rang, and he answered it.

The shift coordinator witnessed Botikotiko answering his cellphone and talking on the cellphone during work hours at the end of the employee meeting. Botikotiko received a written major warning with a five-day suspension pending discharge for the cellphone policy violation.

About a month later, after Botikotiko's employer completed its necessary procedures, Botikotiko was discharged for violating the company's cellphone policy.

Based on these findings, the referee determined that:

• Botikotiko had been discharged for violating his employer's cellphone policy.
• Botikotiko had progressed through his employer's disciplinary steps, some of which were for cellphone policy violations, and he was aware that his job was in jeopardy.
• The final incident, which led to Botikotiko's discharge, occurred on July 27, 2017, when Botikotiko answered his cellphone at the end of a staff meeting.
• Botikotiko's reasons for answering his cellphone during working hours were not credible.
• Botikotiko was aware that he was in a staff meeting on work time, and even though it was held in the cafeteria—a designated cellphone use area—this did not excuse the cellphone from being turned on or for Botikotiko answering it during working hours.

The referee concluded that Botikotiko's employer had met its burden, and the referee denied benefits to Botikotiko.

He appealed, and the Unemployment Compensation Board of Review affirmed, adopting and incorporating the referee's findings and conclusions. The board also provided additional reasons for denying Botikotiko UC benefits under Section 402(e), stating that Botikotiko had “deliberately violated” his employer's cellphone policy despite prior warnings and that he was unable to show good cause for his violations.

Botikotiko went to court to challenge the board's ruling.

The Court's Decision

The court affirmed.

In its decision, the court first found that the record supported the board's findings as well as the board's determination that Botikotiko had committed willful misconduct.

The court said that although Botikotiko asserted that his final cellphone policy violation was merely a mistake and that the referee erred in failing to consider that his policy violations were “out of [his] total control,” the referee and the board did not credit his testimony. Rather, the court noted, the board “expressly determined the rule violation was deliberate,” particularly in light of his recurrent prior violations and his employer's “repeated warnings.”

The court found that Botikotiko's employer's cellphone policy—limiting cellphone usage to designated areas during normal break times—was “reasonable.”

Next, the court rejected Botikotiko's assertion that his employer had subjected him to disparate treatment in the enforcement of its policies. It ruled that even if Botikotiko was correct that his employer discharged him but did not discharge other employees who engaged in similar conduct, he had not shown that he was similarly situated to the other employees who had not been discharged, or that his employer had discharged him based on an improper criterion.

Finally, the court was not persuaded by Botikotiko's contention that he had not received a fair hearing before the referee in light of the fact that a language barrier existed because English was not his first language. It noted that Botikotiko had never contacted the referee's office to request an interpreter prior to the hearing and that he “fully participated in the referee's hearing” and “did not raise any issue regarding the need for an interpreter.”

The case is Botikotiko v. Unemployment Compensation Board of Review.

Steven A. Meyerowitz is the director of FC&S Legal, the editor-in-chief of the Insurance Coverage Law Report, and the founder and president of Meyerowitz Communications Inc. As FC&S legal director, Meyerowitz, a member of the team that conceptualized FC&S Legal, provides daily analysis and commentary on the most significant insurance coverage law decisions from courts across the country and news regarding legislative and regulatory developments. A graduate of Harvard Law School, Meyerowitz was an attorney at a prominent Wall Street law firm before founding Meyerowitz Communications Inc., a law firm marketing communications consulting company.