Sunday, November 13, 2016

Need Help Completing an Application for Pennsylvania Unemployment Compensation Benefits - What Is The Difference Between a Lay-Off and a Termination?

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Independent Contractor or Self-Employment Unemployment Case?
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John A. Gallagher is an attorney who specializes in Pennsylvania Employment Law, with a Sub-Specialty in Unemployment Law developed through handling hundreds of Unemployment-related matters.  John represents claimants who live or work in Philadelphia County, Bucks County, Montgomery County, Chester County, Berks County and Lancaster County with a wide variety of unemployment issues such as: 

Where Can I Find the Online Application for Pennsylvania Unemployment Compensation 

Click to file an online application.  

What Phone Number Do I Call to File My Initial Claim for Unemployment Benefits in Pennsylvania?

You can submit the application over the telephone by calling 888-313-7284. 

Is There a Paper Application for Pennsylvania Unemployment Benefits That I Can Download and Mail or Fax?

There is a
 paper application that can be downloaded, completed by hand and mailed or faxed to an appropriate Service Center
Investigates Unemployment Claims
How Many Days Do I Have 
After I Lost My Job to File a Claim for Unemployment Benefits In Pennsylvania?

An application for benefits must be made promptly after the termination of employment. I believe the longest one may wait is 30 days. After that, a claim may be denied as untimely no matter how valid it is. 

The Most Important Question on a Pennsylvania Unemplyment Application is the One Asking Why You Became Separated From Your Employment - Termination, Quit, Lay Off or Reduction in Force? Make Sure You Check the Right Box

If you check the wrong box, you will likely be branded a "liar" by the Service Center Claims Examimer, and that can lead to real problems.

What Should I Say About Why I am no Longer Employed on my Initial Application for Unemployment Benefits in Pennsylvania??

If you were let go by the company, it is critically important that, when making your application, you accurately state the reasons the employer gave to you for the termination -- whether you believe or agree with what you were told!! If you were told you were being let go for poor performance, state that on your application.

Substituting your own reason, such as claiming you were laid off, will most assuredly lead to problems.

If you resigned - no mater why or under what circumstances - acknowledge the quit, and explain why later

Do not worry -- telling the truth accurately can only help you.

On the other hand, making a mistake - whether intentionally of not - can have dire consequences. 

Unambiguous "Termination" for Poor Performance
When I Complete My Initial Claim for Pennsylvania Unemployment, Should I Say the Reason for Separation Was Lay-Off, Reduction in Force, Termination or Quit? 

Here are some simple definitions of Reduction In Force, Lay-Off, Termination and resignation that generally apply:

Reduction In Force: applies when a number of people are let go at the same time due to some sort of restructuring.  The separation is intended to be permanent, and in many cases, the employees in question are offered some sort of severance.

Lay-Off: most commonly applies to seasonal workers and union members, usually involves more than one person being let go with expectation that employee may be called back to work when things pick up in future

Termination:  when the employer decides, for any one of a thousand reasons, that a single person is no longer a desirable employee, and therefore tells employee that he she is "being let go," or being "terminated," or being fired." 

Resignation: When an employee decides on his/her own, for any one of a thousand reasons, that the company is no longer a desirable employer, and tells employer he/she is "resigning for personal reasons" or "quitting." 

Unambiguous "Resignation"
NOTE:  Click Here to read about a "constructive discharge," i.e. a situation when the employee is essentially forced to quit.

NOTE:  Click Here to read about a "a quit or resignation in lieu of termination or discharge," i.e. a situation when the employee is told they are going to be fired, but can instead resign.

Under Pennsylvania's Unemployment Law, What is the Difference Between a Lay-Off and a Termination?

The most obvious answer can be determined by examining the above-definitions.

For purposes of Pennsylvania Unemployment law, however, there is another key distinction...

Under Pennsylvania Unemployment Law, if on the Initial Application for Benefits, the Claimant States that He/She was Separated Due to a Lay-Off or Reduction in Force, the Claimant is Immediately Deemed Eligible for Benefits 

If when a claimant applies for benefits the claimant says that the separation was due to a lay-off or RIF, he/she will immediately begin to get benefits. That is so because benefits are available to anyone who lost as job "through no fault of their own," and lay-offs and RIFs do not result from any sort of employee misbehavior.  

What Happens After I Submit My Initial Application or Claim for Pennsylvania Unemployment Compensation Benefits? Form UC-45/45A/785, Employer’s Notice of Application – Request for Separation and Wage Information

After the employee/claimant files an application for benefits, the above-form, which is commonly referred to as a Notice of Claim  is sent to the employer by the Service Center. The Notice of Claim requires the employer to promptly provide information concerning why the claimant was separated from employment. 

Deadline for Employer Frequently Ignored
How Long Does an Employer Have to Provide Information to the Pennsylvania Department of Labor About an Employee's Claim for Unemployment Compensation?

The form says that the employer is required to provide the requested information within four (4) business days.  The Department of Labor's Website says that if the employer fails to provide information about the employee's claim for benefits within 4 days, the employer essentially loses the right to do so thereafter:

This form must be completed and returned to OUCSC within four business days. If an employer fails or refuses to respond to the separation inquiry, the claimant’s eligibility will be determined based on available information.

Since, in termination cases the employer has the burden of proving that the employee engaged in willful misconduct, and is thus not eligible for benefits, it would be wonderful for employees if this rule was strictly enforced.   However, it is not.

I have seen numerous situations in which the Service Center accepted and based its application upon an initial employer response filed months after the claim was first filed.  

This can be particularly problematic if the employee stated on his/her initial application that he/she was laid-off, and thus began receiving benefits immediately (as discussed below), and the employer then reports that the employee was terminated, the Service Center will likely deny the claim -- issue a notice of a fraud overpayment.  I have seen this sort of thing happen many times.  

After the Claimant Files for Unemployment in Pennsylvania, the Employer is Asked Why the Claimant is No Longer Employed

The Notice of Claim asks the employer to answer the very same questions about the separation as the claimant was asked during the application process, i.e. was the separation due to Lay-Off, Reduction in Force, Termination or Resignation.

Does a Notice of Financial Determination Mean That I Was Approved for Unemployment in Pennsylvania?

Roughly 2 weeks after you file your application, you will receive a Notice of Financial Determination, which will advise how much in benefits you will receive per week IF benefits are approved. This does not mean you are going to get benefits – all applicants receive a NFD.

In theory, at around this same time the Service Center is receiving the completed Notice of Claim back from the employee.  

Does Pennsylvania Always Conduct an Investigation Into a Claim for Unemployment Compensation Benefits and How Long Does it Take the Service Center Claims Representative to Decide My Claim and Tell Me I f I am Eligible for Benefits?  

It is after the employer’s response to the Notice of Claim is received, and compared to the employee's initial application for benefits, that the Service Center decides whether an investigation as to claimant’s eligibility is necessary, as follows:

                                         Key of Terms

RFS:      Reason for Separation                       LO:      Lay-Off                               Q:               Quit
CL:        Claimant                                           RIF:       Reduction in Force              T:              Termination
EMP:     Employer                                          INV:       Investigation                       BG:             Benefits Granted Immediately

If CL says RFS was RIF and EMP says RFS was RIF =              No INV and BG

If CL says RFS was LO and EMP says RFS was LO =                No INV and BG

If CL says RFS was RIF and EMP says RFS was T or Q  =         Investigation

If CL says RFS was LO and EMP says RFS was T or Q  =          Investigation

If CL says RFS was T and EMP says RFS was T or Q  =              Investigation

If CL says RFS was Q and EMP says RFS was T or Q  =              Investigation

The Investigation itself often takes a month or more, and culminates with the issuance of a Notice of Determination. 

Claims Representative Will Consider Variety of Evidence
What Happens During the Investigation Into My Claim for Pennsylvania Unemployment Benefits?

The Service Center appoints a Claims Representative to evaluate your claim.  The Representative will usually do some or all of the following:

1) review any written materials submitted by the parties;

2) send the employee a Claimant Questionnaire;

3) send the company an Employer Questionnaire;

4) conduct and Oral Interview with the claimant; and,

5) conduct and Oral Interview with the employer's designated spokesperson. 

NOTE:  Usually,the Claims Representative conducts only two interviews (one with claimant and one with employer designee);  the Claims Representative does not have the time or resources to locate and speak with "witnesses."

I Have Received a Claimant Questionnaire and am Being Asked to Provide an Interview With a Pennsylvania Service Center Claims Representative - What Should I Do?

You may want to take a gander at a Post I did some time ago entitled, PA Unemployment Compensation Applications and Forms - Watch Those Admissions! There, I provide some in-depth analysis into the concept of "admissions against interest" in the unemployment claim adjudication process.  

Avoid Being Put "On The Spot"
Then Prepare for the Interview
That said, if a Claims Representative contacts you and seeks to conduct a telephone interview, agree to it, and ask to schedule a date and time certain within the next few days. Make up any reason to avoid giving the interview right there on the spot. 

Although the Claims Rep conducts these interviews every day and can do them in their sleep, this is likely your first, and you need to prepare. At that point, you may want to consider seeking counsel to help you understand the issues in the matter, so that you know what is important when you do the interview.  A stitch in time saves nine!

If you are to go at it alone without guidance, remember a few critical things:

Therefore, you should try and avoid an "admission" that you did something wrong that is supported by a rationalization such as "but the employer is really mean and nasty" or "but everyone does X, and why am I the only one they fired?"  Also, acknowledging that you broke a rule in the course of explaining what a hardworking and skilled worker you are will be of little use.

2) the employer may not rely upon hearsay evidence at a Referee Hearing.  What is hearsay?  It is a statement, whether verbal or written, that was made by a person who is not in the room at the time of the Hearing.  

Although the Claims Representative may consider and rely upon such statements in deciding your claim, the Unemployment Referee may not consider them provided that, during the Hearing, you object to their use on the grounds of hearsay.

NOTE:  The rules of hearsay, and exceptions thereto, are very complex.  The above is simply a thumbnail into how it is generally applied.  

However, if you "admit" to the truth of the allegations during the interview (or in your answers to a Claimant Questionnaire),the employer can simply use those admissions against you at the Hearing and, voila, hearsay problem solved!


Assume your former employer has 3 written statements from your co-workers saying you stole money from the cash register, and it sends them to the Claims Representative during the investigation.  The Claims Representative will likely ask you questions incorporating those statements (so, that is how they know so much!).  

If during the interview you say something that unintentionally constitutes an admission that you stole the cash, you have essentially sealed your fate, and cannot undo that admission at the Referee Hearing.
Tell the Truth - But Avoid a Confession
The same principle applies when answering a Claimant Questionnaire from the Pennsylvania Service Center. A party's own admissions can always be used against the party, and few pieces of evidence are more compelling then a confession!

These are very tricky situations and you may want to consider speaking with counsel before the interview or answer the Questionnaire. 

If I Say on My Application for Unemployment Benefits in Pennsylvania That I Was Laid Off or Let Go Due to Reduction in Force, but I Was in Fact Fired or I Resigned, What Can of Trouble Can I Get In? 

If on the application the claimant stated that the reason for the separation was a lay-off, and the employer reports that it was a termination or quit, the Service Center will, after completing its usual investigation, frequently:

1) find the claimant engaged in willful misconduct or quit without a necessitous and compelling reason; and,

2) issue a Notice of an "At-Fault" or "Fraud" Overpayment requiring the claimant to return all benefits received after the application was filed, along with additional financial and other penalties.   

To Be Avoided at Costs!
The Service Center's reasoning is basically that, since the claimant lied on his/her application in order to immediately secure benefits, the claimant is a liar who cannot be trusted and should be penalized accordingly.  This is not a pleasant situation.

The good news though, is that if you appeal and win on the termination or quit issue at the ensuing Referee Hearing, your eligibility will be reinstated, and the "at fault" determination is completely wiped out.

Negotiating Employment Contracts for Pennsylvania Employees Since 1991
Philadelphia Area Family and Medical Leave (FMLA) Attorney Helping Employees With Medical Leave Requests and Short-Term Disability Appeals

John A. Gallagher is an employment lawyer who represents employees who need an employment lawyer in Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Non-Compete Lawyer Provides Telephone Consultations and Contingent Fee Representation for Overtime Claims

If you believe you require guidance concerning a Willful Misconduct Unemployment issue or a Pennsylvania Unemployment Referee Hearing, and reside in or near Southeastern Pennsylvania, feel free to send me an e-Mail or give me a call.   

Need an Experienced Lawyer to Help You Negotiate an Employment Agreement or Severance Contract?

Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave, to short- or long-term disability appeals. 

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, including willful misconductvoluntary quit, self-employment or independent contractor, sideline employment or severance issues, or need legal representation at a Referee Hearing. 

Click Here to e-mail John directly.

Thanks for checking in with us.

Thursday, November 10, 2016

The Good Employee Versus the Evil Empire - Missteps to Avoid When Applying for Unemployment Benefits in Pennsylvania

Need Legal Help With an Employment Agreement?
John Gallagher's Philadelphia Area Law Firm Negotiates
All Types of Employment Contracts
610-647-5027 or
John A. Gallagher is a Philadelphia area unemployment lawyer who assists Pennsylvania workers located in towns such as Chester Springs, Cheyney, Kennett Square, Coatesville, Concordville, Conshohocken, Coventry, Devault and Douglassville review and negotiate Employment Contracts.  Located just 5-minutes from the King of Prussia Mall, Mr. Gallagher will provide an evaluation of your Employment Agreement for a reasonable flat fee and will provide guidance on how to minimize the impact of Non-Compete Covenants while maximum protection from termination without cause often suffered by At-Will Employees.

How Long Does it Take the Pennsylvania Department of Labor to Decide a Claimant's Application for Unemployment Compensation Benefits?

I have in the past discussed how Unemployment Compensation Service Center goes about deciding a claimant's eligibility for benefits, a process that culminates with its issuance of a Notice of Determination (“NoD”) roughly 4-6 weeks after the application was filed.

Service Center - Adept at Gathering Facts
Below find some very important tips to keep in mind; you may want to return to and reread this e-Mail after you have read the attached.  If at any time during the process leading up your receipt of a Notice of Determination you believe my assistance would be helpful, please do not hesitate to contact me.

A.     The Employer has to Prove You Did Something Wrong That Justified Your Termination; It Will Do You No Good to Prove That You Are a “Good Person” or That the Employer is "Evil"

Remember, the employer has the burden of proving you engaged in Willful Misconduct (a legal term that is used to characterize hundreds of different types of employee misbehavior). Consequently, choose your words very carefully and try not to admit anything against your interest during the investigation! Although you need to always tell the truth in response to a direct question, avoid volunteering extraneous information that you think may “help” you, but actually has the opposite effect.

The majority of employers have little emotional investment in you or your claim, and most do a poor job of providing the quantum of proof necessary to prove willful misconduct irrespective of their emotional commitment.

There are oxymoronic principles that illustrate why this is the case.

B.       The Bigger They Are, the Harder is it for Them to Care

Larger companies often have the time, resources, experience and know-how to build a solid willful misconduct case.  However, in most situations, the person dealing with the Service Center on behalf of the employer has met the claimant on only a few occasions, if at all, and was not involved in the circumstances leading up to the termination. 

The Soulless Behemoth, Ivan Drago, Taken Apart by
 the More Committed, More Prepared Rocky
These employer representatives have no feelings where the claimant, or the claim, are concerned, They are simply doing their job, and people who are just doing their job often tend to do it poorly. The larger employer’s lack of care supersedes their superior resources, know-how, etc. and will often lead to a finding in the claimant’s favor unless the claimant is done in by his/her own words. 

C.       All Hat and No Cattle

Smaller employers, on the other hand, are more likely to feel like they have a personal stake in the common on your claim. Heck, the owner of the company may very well be the one who is attempting to convince the Service Center that the claimant engaged in willful misconduct.

In addition, smaller companies have far less experience fighting unemployment claims and often choose to do so without the benefit of legal representation.

Finally, and perhaps most crucially, it is frequently the case that the people who participated in the decision to terminate the claimant are the very same people who are attempting to convince the Service Center Representative that the claimant in the engaged in willful misconduct. It is not surprising, then, that smaller employers often take the self-righteous view that their emphatic assertions of willful misconduct should alone be sufficient to warrant a denial of the claim irrespective of the existence of competent proof on the issue.

Looking Good, Vinny!
             D.  A Fool for a Client

Employees are almost always emotionally charged up, and therefore face the same challenges as do representatives of smaller employers.

If you are an employee and found yourself nodding your head while reading the last passage, you can be sure that a small employer reading this section will similarly be nodding its head while reading this one!

As noted above many employers do a poor job of “proving” that an employee engaged in “willful misconduct” during the claim investigative process (they are far better prepared and formidable at a Pennsylvania Unemployment Referee Hearing, however.)

Unintended Confessions
 Lead to Unintended Consequences
There, the statement, “I was often late” is what we call an “admission against interest;” - the fact that “everyone else was late too” will not help you – “everyone else” did not get fired, nor is everyone else not applying for benefits!

Also, saying you are a good, honest, hardworking employee and the company was like the Manson Family also will not help. 

First, boasting about oneself while demonizing one’s adversary is rarely effective advocacy.

Striking Resemblance to the Previously Revered 
Second, if you were caught on camera stealing $20,000 out of the company’s safe on the day before you were fired for theft, your “reputation,” and that of your former employer, will have no significance.  Moreover, in close cases, such passive-aggressive statements create an aura of self-justification that may lead the fact-finder to determine that the employee “did the crime” because he/she was filled with self-pity, vengeance and loathing.   

The benefit determination process can be tricky and, for this reason, some folks seek legal assistance to prepare answers to a Claimant Questionnaire or to get ready for an interview with the Service Center Representative.


Representing Pennsylvania’s Workforce Since 1991
John A. Gallagher is an attorney who specializes in Pennsylvania Unemployment Law.  John represents claimants who live or work in Philadelphia County, Bucks County, Montgomery County, Chester County, Berks County or Lancaster County with a wide variety of issues such as:

·                      1.    how to file an on-line application for unemployment benefits

·                  2.   how to complete a Claimant Questionnaire

·                      3.      how to complete an Independent Contractor questionnaire

·                4.     preparing for a telephone interview with the Pennsylvania Department                                                                                of  Labor’s Service Center

·                      5.      how to prove that you have a sideline business

·                 6.     how to appeal a Notice of Financial Determination

If you have filed for Pennsylvania Unemployment Compensation and believe you need legal help with an issue relating to your application, questionnaire, Referee Hearing or appeal, call or e-Mail John (please include your phone number) and Mr. Gallagher will spend a few minutes reviewing the situation with you and, if he believes he can help, he will explain why and how, and will quote you a reasonable flat fee

John A. Gallagher is an employment attorney who represents employees who need an employment lawyer in the Philadelphia area, including individuals who live or work in Philly or nearby communities such as Chester County, Delaware County, Montgomery County, Bucks County, Berks County and Lancaster County.

Philadelphia Area Family and Medical Leave (FMLA) Lawyer Helping Employees With Medical Leave Requests and Short-Term Disability Appeals

Need an Experienced Pennsylvania Employment Attorney to Help You Negotiate an Employment Agreement or Severance Contract?

Have questions and need a legal opinion regarding Pennsylvania Unemployment issues such as  Willful Misconduct  or seeking legal representation for a Pennsylvania Unemployment Referee Hearing, feel free to send me an e-Mail or give me a call; I will provide a brief analysis of your issue and/or chance for winning at no charge.   

Click Here to jump to our answers to FAQs concerning a wide variety of common
employment law questions, such as “How does FMLA work?”-  “What does it mean to be an at-will employee?”-  “Do I have a claim for wrongful termination?” or “Is my non-compete enforceable?”  

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, including voluntary quit, willful misconductindependent contractor, self-employment, completing a Claimant Questionnaire, sideline employment or severance, or if you want to hire an attorney for a Referee Hearing. 

Click Here to e-mail John directly.

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