PENNSYLVANIA UNEMPLOYMENT COMPENSATION: DO I NEED A LAWYER TO ATTEND THE HEARING?

When an employee is terminated or suspended from his or her employment, the employee has the right to file for benefits under the Pennsylvania Unemployment Compensation (UC) Act. The employee files an initial application for benefits and fills out a separation from employment questionnaire. The employer is then notified by the Unemployment Service Center that a claim has been filed and it has the opportunity to respond. A Service Center employee will take statements from both sides and issue a Notice of Determination, either granting or denying benefits.

Most employees believe that unemployment compensation benefits are guaranteed, but they are not—even if the employee gets a packet from the Service Center initially with a debit card with money in the account, this does not mean that benefits have been awarded. Debit cards are issued to UC applicants after they are determined to be financially eligible for benefits. After a determination of financial eligibility a Notice of Determination will be issued examining the facts of the case and determining whether the applicant’s separation qualifies him or her for UC benefits under the law. If the Notice of Determination is unfavorable to the employee, a directive to repay any benefits previously paid is made. If the Service Center believes that statements made by the employee were fraudulent or an effort was made to deceive the Service Center employee, a Fault Overpayment will be issued and money paid previously can be collected directly from the employee. If there is no fault finding, but money was previously paid on the claim, a Non Fault Overpayment will be issued and the money can be collected against any future claims for Unemployment Compensation benefits received. After a Notice of Determination is issued, either party has the right to a de novo (full evidentiary) hearing before a Referee chosen by the Bureau of Unemployment Compensation.

Most people in Pennsylvania are under the false assumption that Unemployment Compensation benefits are derived exclusively from the state. This is far from the truth. Employers on average pay approximately half of the ongoing unemployment compensation benefits being paid to former employees. Consequently, to avoid this expense, employers frequently hire experienced attorneys or non-legal representatives who specialize in unemployment compensation hearings to represent their interests at a Referee’s hearing. They prepare exhibits and offer live testimony before the Referee to prove that the employee is not eligible for benefits based on the facts of their separation. When an employee is terminated the Employer has the burden to prove that the employee was terminated for “Willful Misconduct.” This term is not defined in the Pennsylvania Unemployment Compensation Act, but has been defined as an act of wanton or willful disregard of the employer’s interests, a deliberate violation of the employer’s rules, a disregard of the standards of behavior which the employer has the right to expect of an employee or negligence indicating intentional disregard of the employer’s interests or of the employee’s duties and obligations to the employer. If the employer makes such a case with competent evidence, the burden then shifts to the employee to offer a good cause for the violation. It is up to the Referee, sitting as the fact-finder, to determine the credibility of the witnesses and make an ultimate finding of eligibility or whether the employee committed willful misconduct associated with their work.

There is no requirement that a terminated or suspended employee have an attorney at an unemployment compensation hearing; however, as seen from the potential minefields and issues raised above, it is clearly advisable. An unemployment hearing in Pennsylvania is not strictly bound by the Pennsylvania Rules of Evidence, however, Referee’s will usually exclude hearsay and irrelevant evidence if properly objected to at the hearing. Objections should be considered to not only verbal testimony offered at the hearing, but to written documentation submitted by the Employer before the hearing and sometimes at the hearing.

Further, it’s important to note that Referees usually allocate 45 minutes for hearings so it is important to get to the substance of the issue in a concise fashion and not waste the Referee’s time with testimony that is not relevant to the separation. The UC hearing is not the forum to address every single instance of unfair treatment a Claimant received at the hands of the Employer. An experienced attorney can help craft the Claimant’s testimony so that a Referee understand it in a concise manner and hopefully use it to justify awarding benefits.  It is essential to get all of the employee’s testimony and evidence submitted at the Referee’s hearing because that is usually your one shot at creating a record for an appeal. If the employee is unsuccessful before the Referee, she can appeal, however, the Unemployment Compensation Board of Review will usually only review a transcript of what was said at the Referee’s hearing. In other words there usually won’t be a second chance to add something you forgot to talk about or offer as evidence at the Referee’s hearing once the case is on appeal. Many times employees will decide to try to do the hearing themselves and if they lose, hire an attorney. The problem with that is that once a record is created before the Referee, there is usually not a whole lot that an attorney can do. It normally would be better to have the attorney at the Referee’s hearing because that is where the attorney can be most effective.

Meeting with an experienced employment attorney at the outset of your job separation is also important because the attorney can determine whether other avenues of compensation may be available to you, such as workers compensation, a personal injury claim or a social security disability. Getting terminated or suspended from a job is a devastating blow and unemployment compensation can be an integral part of getting you and your family back on their feet. For an evaluation of your case, make sure to speak to an experienced employment attorney.