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Sensenig v. Unemployment Compensation Board of Review2/20/2004
This is an appeal by Walter Sensenig (Claimant) from an order of the Unemployment Compensation Board of Review (Board) that affirmed a referee's decision to deny benefits on the basis Claimant had voluntarily quit his job without necessitous and compelling reasons for doing so. Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b). On appeal we must decide whether Claimant's right to privacy justified his refusal to take a drug test, when the owner of M&M;Enterprises Transportation (Employer) observed him after work in a bar for three hours, and he was scheduled to drive a truck early the following morning.
The referee made the following findings of fact. Claimant had been employed by Employer as a truck driver from January 15, 2002 until April 3, 2003. Employer had a policy of "zero tolerance" for drugs and alcohol and any positive test results would result in immediate termination. Employer and the state and federal Departments of Transportation permit pre-employment testing, random testing and testing based on "reasonable suspicion" that a truck driver is in violation of the drug and alcohol policy. A driver who holds a Class A CDL license, as Claimant did, is regarded as over the legal limit for alcohol if he has a test result of 0.02% or higher.
After work on April 3, 2003 Employer observed that Claimant had gone to a restaurant/bar and that his vehicle was parked there for 3½ hours. Employer peered through the window of the establishment and saw Claimant consuming alcohol. Claimant was scheduled to report to work at 8:00 a.m. the next day. Due to this observation, Employer's wife, who is a partner in the business, called Claimant's home that evening and advised Claimant's wife that Claimant was to submit to drug and alcohol testing the following morning. Thereafter, Claimant spoke with Employer's wife and indicated that he believed testing, under the circumstances, violated his privacy rights and was outside the parameters of Department of Transportation regulations. She, however, advised Claimant that the test was mandatory. Claimant then indicated that he would not take the test and quit.
Claimant filed an application for unemployment compensation benefits, which was denied. He appealed and the referee upheld the denial because, under the circumstances, a reasonable person would have taken the test, rather than quit. Claimant then appealed to the Board, which Board summarily affirmed. Further appeal to this Court ensued.
Claimant contends on appeal here that the circumstances did not warrant the request for alcohol testing and, thus, he had a necessitous and compelling reason for quitting, i.e., to maintain his right to privacy. Where a case concerns a voluntary quit, in order to obtain unemployment benefits the claimant has the burden to show that he quit his job for necessitous and compelling reasons. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Necessitous and compelling reasons are those which result from circumstances that produce pressure to terminate a job that is both real and substantial, and would compel a reasonable person in like circumstances to act in the same way. Malloy v. Unemployment Compensation Board of Review, 523 A.2d 834 (Pa. Cmwlth.1987).
The testimony of Mr. Maney, the owner of the company, reveals that Employer has a zero tolerance policy for drugs and alcohol, and that Claimant was aware of this policy. (N.T. 14.) Additionally, the record shows that Claimant signed a statement acknowledging the policy. (Id.; Employer Ex. 1.) Claimant, himself, admitted that there is a rando
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