Can you get unemployment if your employer fires you for getting a DUI?

I often represent clients who need to be able to drive in order to keep working. Usually, my clients fall into one of these categories:

  • Need a license to drive to work (commute)
  • Drive an employer vehicle at work and need a "good driving record"
  • They have a Commercial Drivers License ("CDL") and drive a tractor trailer or other large vehicle.

Often, I work with clients whose boss will find out that they got a DUI in their personal vehicle on personal time. The boss decides to fire my client. Then, in addition to all the problems of having a criminal case pending for the DUI, the client has lost their job and income.

To make matters worse, sometimes when my clients file for unemployment the employer will file papers with the state to try to fight to keep my client from getting unemployment. 

What can I do to help my clients out?


I recently represented a client who had a CDL who worked for a large, national trucking company. He was charged with DUI from an incident that occurred on personal time in his personal vehicle (a car, not a tractor trailer). He reported his arrest to his employer immediately. He was only arrested, not convicted. He still had a valid drivers license and a valid CDL. He was not going to lose his license for months and months.

The employer still fired him anyway. Immediately.

I advised my client to file for unemployment benefits. The employer filed paperwork to contest this, and the initial ruling by the unemployment office prevented my client from getting unemployment benefits. Following my advice, he appealed, and we had a hearing in front of an unemployment compensation Referee to determine whether my client had a right to unemployment benefits.

I received the Referee's decision today, and my client won. He was awarded unemployment benefits. I really can't overstate how important it was for him financially.

So how did I help a commercial driver get unemployment benefits after he was fired for violating a specific work rule against getting a DUI in a personal vehicle on personal time?

The answer is fairly complicated, but it depends on a number of factors.

First, you need to remember that unemployment compensation hearings are *not* hearings about whether a company can legally fire someone. Pennsylvania is generally an "at will" state where employers can fire anyone for anything at any time. There are exceptions: employers cannot discriminate or retaliate against a whistle-blower, but as a general rule, they can fire anyone for anything at any time.

Whether a fired employee has a legal right to receive unemployment compensation is a different question. That is the question that must be answered by the Referee (an administrative hearing judge, basically) in unemployment compensation hearings.

Most DUI-related terminations that go to unemployment compensation hearings involve two issues:

  1. Did the employee commit "willful misconduct" by breaking a work rule and getting an off duty DUI in a personal vehicle on personal time?
  2. Did the employee do something so awful while off duty and on personal time that it violated reasonable standards of decency?

The first thing I look at is whether there is an employee handbook. Often, there isn't. If there is a handbook, is there a specific rule against getting arrested for DUI while off duty and in a personal vehicle? If there is a rule, there is certainly a basis to fire the employee, but it might not be enough to prevent the employee from getting unemployment benefits.

The employer has the obligation to prove that the DUI occurred. An unemployment compensation hearing is not a criminal court of law, and the company does not have to prove that the DUI occurred by the very high "beyond a reasonable doubt" standard that applies in criminal court. On the other hand, they can't simply say "we heard Employee Smith was arrested for a DUI and fired him." The employer needs to offer some factual evidence to support the claim that the DUI actually occurred. Often, employers rely on docket sheets showing a guilty plea or an admission into ARD. A guilty plea is solid proof. ARD is not always enough proof.

If the employer fires the employee before the criminal case is resolved through a plea or ARD or a conviction, they need to provide other types of proof that the DUI occurred. This is not always easy and it is often worth it to fight these cases.

Keep in mind that the employee is ready, able, and available for work. The employee often still has a valid and unaffected drivers license for months after an arrest unless there is a suspension for refusing chemical testing. That means that unless the employer can show a violation of a specific work rule about being arrested for a DUI, that unemployment benefits should be paid to the employee. 

The second question that needs to be answered is this: Is it reasonable to have a work rule allowing someone to be fired for merely being arrested for off duty, off site conduct? The appellate court cases tell us that such a broad rule is not always reasonable. And an employer cannot rely on an unreasonable work rule as a legal basis to deny unemployment benefits to an employee. There are many, many cases about this and they are very fact-specific. 

If you are reading this article, the question you want me to answer is "What about my case?" I'm not trying to hide the answer from you. The truth is that I can't answer that for you without knowing what your facts are.

What things do you need to bring with you so I can evaluate your case?

  • Your criminal charging documents
  • The docket sheet for your criminal case to show how far along the case is in the criminal court system
  • Your employee handbook
  • Any letters, email, text messages, or voicemails from your employer that relate to why you were fired
  • All of your unemployment benefits papers, including your application for benefits and any papers you received from the unemployment office or your employer

I want to sit down with you to review those things with you. I will give you an honest assessment about your case following our standard office consultation policy (we generally do free in-office consultations for new clients).

I do not give "fairy tale" consultations. If your case is a bad one, I will tell you. If there is hope, I will tell you. I do not want to take your money for a terrible case where I can't help you. That is not how I do business.

You can reach my office at (717) 848-8455 to set up your consultation.