Wednesday, March 22, 2017

Americans with Disabilities Act (ADA) - Title III of ADA Requiring Accessibility of Websites for Handicapped - U.S. Department of Justice (DOJ) Shuts Down Cal-Berkeley On-Line Videos of Classroom Lectures

Advancing Cause of Pennsylvania's Workforce Since 1991
By: John A. Gallagher, 610-647-5027

20,000 University of California-Berkeley on-Line Classroom Videos to be Removed Following Edict of U.S. DOJ Requiring Handicap Accessibility Via Close Captioning Pursuant to Title III of ADA

There is a saying that became popular when the Americans With Disabilities Act was enacted in 1993, to wit: "When one man breaks a leg, the whole country must limp."

Are We Going Too Far?
Now, that may be harsh, but one has to wonder whether pursuit of the goals of ADA will eventually cause a significant, deleterious effect on our nation's economy and overall well-being.  Is it feasible to require that every website be fully accessible to the blind, the hearing impaired and the paralyzed? Should retailers be required to insure that every product on their shelves may be identified by the blind?

The ADA's goals are laudable, its existence a necessity. That said, the ADA itself recognizes its own limitations by requiring only "reasonable" accommodations; the question is, what is reasonable?

The Latest News on Title III of ADA Accessibility Litigation and Cases

Take, for example, the recent statement issued by Cathy Koshland, UC Berkeley's vice chancellor for undergraduate education University of California-Berkeley's President, in which the university announced that effective March 15, 2017 public access to its public legacy libraries on YouTube and iTunesU, which include over 20,000 publications, would be restricted.

This was in response to an August 30, 2016 letter from the DOJ which effectively stated that the public legacy content was non-compliant with Title III of ADA.  

For an excellent overview of the facts and circumstances relating to this matter, Click Here.

What Will SCOTUS's Stand on ADA Be?

Click Here to read about SCOTUS's recent interest in whether soda vending machines must be ADA compliant for use by blind persons.


Philadelphia Area Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Unemployment Employment Attorney Provides Free Telephone Consultations (15 Minutes in Duration)

If you are looking for an unemployment lawyer, and live in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Experienced Lawyer for an Unemployment Hearing Before a Referee In Malvern, King of Prussia, Springfield, Bristol, Reading, Lancaster or Philadelphia?

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

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly; Mr. Gallagher has handled hundreds of Unemployment Referee Hearings throughout Pennsylvania.

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Thursday, March 16, 2017

Non-Compete Agreements - Enforceable or Not - Negotiation is Often the Key

Is My Non-Compete Agreement Valid and Enforceable in Pennsylvania?

Helping Pennsylvania Employees With Non-Competes Since 1991
Call 610-647-5027

I am routinely asked by folks who are currently employed to review Employment Agreements containing Non-Competition and Non-Solicitation covenants (as well as a Confidentiality clause).  The most common question I am asked?

 “Is my Non-Compete enforceable?”

Typically, these employees are either considering resignation to seek employment elsewhere or are concerned that they will soon be separated from their job involuntarily.

Under Pennsylvania law, and that of virtually every state, there are number of reasons why a Non-Compete provision may be unenforceable


Signed, Sealed and Delivered...

That said, it is often the case that Non-Solicitation covenants are far more restrictive and problematic than are their counterparts. That is so because, while the courts in general do not
favor limiting the ability of the average worker to move from one job to another, they do protect employers from the loss of business when customers are taken by a former employee in violation of a Non-Solicitation covenant.

Employment Agreements Remain in Place Even if the Non-Compete Covenant is Void, Invalid and Unenforceable Under Pennsylvania Law


Even Perry Mason Cannot Make an
Employment Contract Simply Disappear...












Focusing exclusively on the enforceability, vel non, of the restrictive covenants contained within your employment contract, however, misses the mark, I am afraid.

The principle thing to bear in mind, I often tell my clients, is this: whether the restrictions are enforceable or not, the Employment Agreement – and thus the restrictive covenants contained therein -  will remain in existence. Only a court can declare a contract invalid and unenforceable. 

Even the finest lawyer in all the land cannot make a contract vanish...so, when seeking new employment and faced with the interviewer's inquiry, "Do you have a Non-Compete," a truthful answer must be in the affirmative - irrespective of whether you have a legal opinion concluding the covenants are invalid and unenforceable.

How Can I Negotiate My Non-Compete Agreement? Call 610-647-5027

Hence, the trick is to negotiate the Agreement out of existence, or to at least limit its scope, because prospective employers are very hesitant to hire employees that have signed Employment Agreements containing Non-Compete and Non-Solicit clauses – whether same appear to be unenforceable or not.

Negotiation is always possible. After all a contract is simply a memorialization of the parties' agreements and promises.  They are always subject to amendment at the parties wishes.

The best approach varies from case to case; however everything a short-time employee does is  crucial and subject to great scrutiny.  

Hence, contacting qualified counsel prior to taking any steps towards the door is virtually essential.

The devil you know is better than that you don't.  While you may not be able to negotiate everything you want, the certainty of knowing that you will be free to take a new job without fear of a lawsuit from your former employer is priceless. 

Moreover, any company that is looking to hire you will appreciate knowing exactly how it may enlist you without fear of legal action.

Pennsylvania Non-Compete Lawyer John A. Gallagher
Philadelphia Area Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live or work in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Employment Labor Lawyer Near Philadelphia?

Click Here if you have questions about any aspect of employment law, including:

·       wrongful termination
·       wage and overtime claims
·       non-compete or severance agreements
·       discrimination, wrongful discharge and retaliation laws
·       Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

Thanks for checking in with us.

Wednesday, March 8, 2017

Blind Customers, Vending Machines, Class Actions and the Americans With Disabilities Act - Supreme Court Takes Notice

Helping All Pennsylvania Employees with all
Employment-Related Issues Since 1991


John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.
  
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…


Click Here to e-mail John directly.

Fifth Circuit Court of Appeals Holds in Magee v. Coca Cola That Soft Drink Vending Machines Are Not "Sales Establishments," and Thus Not "Places of Public Accommodation" Under Title III of ADA

In Magee v. Coca-Cola Refreshments USAInc., 2016 U.S. App. LEXIS 14978 (5th Cir. Aug. 15, 2016), the Fifth Circuit upheld the dismissal of a claim brought by a plaintiff seeking class action certification against the owner of Coca Cola self-service automated vending machines located in a bus depot and hospital. The plaintiff, who alleged he was blind, asserted that the vending machines violated ADA because they did not contain tactile buttons that would enable a blind patron to select his/her soft drink selection without aid from others.


Source of Controversy -
But Only One of Millions of Vending Machines of All Kinds
In explaining its central holding – that a self-service vending machine located within a place of public accommodation is not a “place” and therefore not a “sales establishment” (or “place of public accommodation”) under Title III – the Magee court adopted the reasoning and holding of several circuits, including that of the Third Circuit in Fordv. Schering-Plough Corp., 145 F. 3rd 601,(3rd Cir. 1998).

Third Circuit's Physical Access Test for Determining What Constitutes a Place of Public Accommodation, Announced in Ford v. Schering-Plough and Reaffirmed in Peoples v.  Discover Fin. Servs. Represents Majority View of U.S. Circuit Courts of Appeal

In Ford, the third Circuit Court of Appeals, which adjudicates federal district court decisions arising in Pennsylvania, new Jersey, Delaware and the Virgin Islands, held that “[t]he plain meaning of Title III is that a public accommodation is a place… In other words, a bookstore, for example, must make its facilities and sales operations accessible to individuals with disabilities, but is not required to stock Brailled or large print books.” This has become known as the "physical access" or "physical entry" rule.

In Peoples v. Discover Fin. Servs., Inc., 387 Fed.Appx. 179, 183 (3d Cir. 2010), the plaintiff asked the Court to reconsider Ford’s ruling that that a place of public accommodation must “a physical place open to public access.”  The Court refused to do so, noting it was controlled by the precedent established by Ford.  Subsequently, the U.S. Supreme denied Peoples' Petition for Certiorari.

Fifth Circuit’s 2016 Decision in Magee v. Coca-Cola Elects to Follow Precedent from Third, Sixth and Ninth Circuits and Holds that Self-Serviced Vending Machines are not Covered by Title III of ADA Because they are not “Sales Establishments”- The "Physical Access" or "Physical Entry" Rule Presently Constitutes the Majority View in the United States 

In Magee, the Fifth Circuit cited a wide variety of sources in support of its decision, including the Ford decision, and similar holdings previously made by the Sixth and Ninth Circuit Courts of Appeals, and in doing so rejected decisions rendered by the First, Second, and Seventh Circuits, which have interpreted the term “public accommodation” to extend beyond physical places. 


Will SCOTUS Hear Case After Denying Cert in Peoples Matter??
United States Supreme Court Indicates Possible Intention to Grant Certiorari in Magee v. Coca Cola


A Petition for Certiorari in the Magee case, filed in November 2016, is pending before the Supreme Court. As reported by Dan Fisher in Forbes (Supreme  Court asks government if a Coke machine must be ADA compliant), on February 27 the Supreme Court docketed a request to the Solicitor General for input on Magee’s pending Petition for Certiorari.

Justice Antonin Scalia

Justice Scalia’s Dissent in PGA Tour v. Martin Consistent with Physical Access Rule Established in Ford and Magee 

Justice Scalia’s dissent in PGA Tour v. Martin, 532 U.S. 661 (2001), which based upon my research is the most notable examination of the public accommodation issue made to date by the Supreme Court, may shed some insight into how the Scalia bloc will vote if the Magee appeal is in fact adjudicated by the Court.

In Martin, golfer Casey Martin, who had a disability that made it impossible for him to walk 18-holes of golf, prevailed before the Ninth Circuit on his claim that the PGA Tour’s refusal to permit him to use a golf cart while he attempted to qualify to play on the PGA Tour violated Title III.  The issue in the case was whether the plaintiff was during competition in “Q-School” tournaments a consumer of services offered to the public covered by ADA as opposed to being a provider of such services not covered thereby.  All conceded that golf course is the “type of place specifically identified by the Act as a public accommodation. §12181(7)(L).”

Holding that any member of the public with sufficient pedigree and resources could gain entry into a Q-School tournament, and that players in such events were at once patrons and providers, the Court held by 7-2 majority that the PGA Tour’s failure to permit Martin to use a golf cart violated Title III.  

Justice Scalia authored a dissent, which was joined by Justice Thomas.  The initial thrust of the dissent was that Title III was intended to protect only customers of public accommodations, and did not protect independent contractors such as Martin.  Thereafter, Justice Scalia addressed an issue not considered by the majority, to wit, whether Title III requires a provider of public accommodations to make modification to its inventory, services and/or privileges that would fundamentally alter the nature of same:

Having erroneously held that Title III applies to the “customers” of professional golf who consist of its practitioners, the Court then erroneously answers– or to be accurate simply ignores– a second question. The ADA requires covered businesses to make such reasonable modifications of “policies, practices, or procedures” as are necessary to “afford” goods, services, and privileges to individuals with disabilities; but it explicitly does not require “modifications [that] would fundamentally alter the nature” of the goods, services, and privileges. §12182(b)(2)(A)(ii). In other words, disabled individuals must be given access to the same goods, services, and privileges that others enjoy. The regulations state that Title III “does not require a public accommodation to alter its inventory to include accessible or special goods with accessibility features that are designed for, or facilitate use by, individuals with disabilities.” 28 CFR § 36.307 (2000); see also 28 CFR, ch. 1, pt. 36, App. B, p. 650 (2000). As one Court of Appeals has explained:

“The common sense of the statute is that the content of the goods or services offered by a place of public accommodation is not regulated. A camera store may not refuse to sell cameras to a disabled person, but it is not required to stock cameras specially designed for such persons. Had Congress purposed to impose so enormous a burden on the retail sector of the economy and so vast a supervisory responsibility on the federal courts, we think it would have made its intention clearer and would at least have imposed some standards. It is hardly a feasible judicial function to decide whether shoestores should sell single shoes to one-legged persons and if so at what price, or how many Braille books the Borders or Barnes and Noble bookstore chains should stock in each of their stores.” 

Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 560 (CA7 1999).

532 U.S. at __ 

Justice Scalia’s dissent – addressing an issue not addressed by the majority therein and not dealt with by the Court to date – is notable because it employs the very same rationale as utilized in Ford and its brethren, including Magee.  Indeed, the passage from the Seventh Circuit’s decision cites the very same book store/Braille example as employed in Ford and Magee. 

Just as in Ford, Magee and the majority of circuits to have decided the issue at hand, Justice Scalia found that the core requirement of Title III is that a place of public accommodation is just that – a place, and that, while the owner of such places must provide public access to their goods and services to all members of the public, Title III “does not require a public accommodation to alter its inventory to include accessible or special goods with accessibility features that are designed for, or facilitate use by, individuals with disabilities.”

NEWS UPDATE - March 23, 2017

Department of Justice Requires University Websites to be ADA Compliant

Click Here to read about the University of Cal Berkeley's march 2017 response.  

Representing Pennsylvania's Workforce since 1991

Philadelphia Area Employment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live or work in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Employment Labor Lawyer Near Philadelphia?

Click Here if you have questions about any aspect of employment law, including:

·       wrongful termination
·       wage and overtime claims
·       non-compete or severance agreements
·       discrimination, wrongful discharge and retaliation laws
·       Family and Medical Leave

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues

Click Here to e-mail John directly.

Thanks for checking in with us.



Wednesday, February 22, 2017

Pennsylvania Employment Lawyer Located in Chester County

Wrongful Discharge and Illegal Discrimination Claims Handled on Contingent Fee Basis



I have not posted for a while, but I have some great ideas for some new articles.

Coming soon!

Please use the Search Bar to look around; I have posted articles on nearly every employment law issue one can imagine.

Thanks for your patience.

John A. Gallagher, Esquire

Representing Pennsylvania's Workforce since 1991

Philadelphia Area Unemployment Attorney Representing Employees

John A. Gallagher is an employment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Unemployment Employment Attorney Provides Free Telephone Consultations (15 Minutes in Duration)

If you are looking for an unemployment lawyer, and live in Paoli, Exton, Phoenixville, Downingtown, Coatesville, West Chester, Newtown Square, Nether Providence, Springfield, Aston, Broomall, Marple, Villanova, Lansdowne, Wayne, Ardmore, Bryn Mawr, Glenolden, Havertown, Haverford, Limerick, Oaks, Lower Merion or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Experienced Lawyer for an Unemployment Hearing Before a Referee In Malvern, King of Prussia, Springfield, Bristol, Reading, Lancaster or Philadelphia?

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

Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues


Thursday, November 3, 2016

Determination of Financial Eligibility Under Pennsylvania's Unemployment Law - Simple Explanations of a Base Year, a Benefit Year, a Credit Week and Appealing a Notice of Financial Determination

Need Legal Help With a Non-Compete Agreement?
John Gallagher's Philadelphia Area Law Firm Negotiates
All Types of Employment Contracts
610-647-5027 or jag@johnagallagher.com
John A. Gallagher is a Philadelphia area employment attorney who helps Pennsylvania citizens located in towns such as Allentown, Reading, Bethlehem, West Norriton, West Goshen, East Whiteland, Devon, Abington, Ambler and Springfield review and negotiate Non-Compete Agreements. Located in Chester County, 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 Can I Figure Out My Financial Eligibility for Benefits Under the Pennsylvania Unemployment Compensation Law?

If you have been in the workforce as a w-2 employee for more than a few years, you probably will have an easy time figuring out your weekly benefit rate if you are determined to be eligible for unemployment compensation (i.e. your employment ended through no fault of your own or you had a good reason to resign under the law).

I Was Quit, Resigned, Was Terminated or Was Laid Off from My First Full-Time Job in Pennsylvania – How Can I Figure Out if I am Financially Eligible for Unemployment Benefits?

However, if you are being separated from the full-time job you have ever had in Pennsylvania – or the first such job you have had in years (maybe you took time off for the family, moved back home after years out West or decided that the great American Dream of self-employment was not for you), calculating your financial eligibility for benefits is a bit more challenging

How Does Pennsylvania’s Department of Labor Determine Whether I Have Earned Enough Money Over a Long Enough Time-Period When Determining My Financial Eligibility for Pennsylvania Unemployment Compensation Benefits?

Immediately upon receipt of an application for unemployment benefits filed by a recently separated employee (i.e. a “claimant”), the Pennsylvania Department of Labor’s Unemployment Service Center does two things: a) it sends the employer a “Notice of Application” wherein it informs the employer of the application and asks the employer to provide information concerning why the employee was separated; and, b) it calculates the claimant’s financial eligibility for benefits.

NOTE: Once the financial eligibility calculations are complete, which usually takes a week or so, the Service Center mails the claimant a Notice of Financial Determination.

In calculating the claimant’s “Weekly Benefit Rate,” the Service Center determines the claimant’s "Benefit Year,” the claimant's “Base Year,” and the claimant’s “Base Year Wages,” and the claimant’s “Credit Weeks.”  We will explain these terms below.

What is My “Benefit Year” Under the Pennsylvania Unemployment Law? 

The 52 weeks following an application for benefits – 43 P.S. §753(b).

EXAMPLE:  Sally is terminated on December 24, 2016, and files an application for benefits on December 31 2016. 

Sally’s Benefit Year will be December 31 2016 through December 31 2017.

Once the Benefit Year is established, the claimant’s “Base Year” is determined.

What is My “Base Year” Under the Pennsylvania Unemployment Law? 

A claimant’s "base year" is the first four of the last five completed calendar quarters. 43 P.S. §753(a).  I find this a little confusing, but applying the statute as follows makes it a little eerier to figure out the claimant’s Base Year:

·       Go back 5-quarters (i.e. 15-months) from the first day of the Benefit Year;

·       Eliminate the quarter (i.e. 3-months) immediately preceding the date of application (i.e. the start of claimant’s Benefit Year);

·       The 12-months that are left are the first four of the last five completed calendar quarters, i.e. the claimant’s Base Year.

EXAMPLE:  Sally is terminated on December 24, 2016, and files an application for benefits on December 31, 2016.  Sally’s Benefit Year starts December 31, 2016.

Counting back 5 quarters from December 31, 2016 brings us to September 30, 2015 - which will be the start of Sally’s Base Year. 

Sally’s Base Year will be September 30, 2015 to September 30, 2016.

What Are “Credit Weeks” Under the Pennsylvania Unemployment Law? 

A credit week is any calendar week during the Base Year in which the claimant earns
remuneration of $50 or more. 43 P.S. §753(g)(1).

EXAMPLE:  Sally Recentcollegegrad secured her first full-time job ever on August 1, 2016, receiving a salary of $800 per week.  Unfortunately, Sally is laid-off on December 24, 2016.

Sally files an application for benefits on December 31, 2016.  Sally’s Benefit Year starts December 31, 2016.  Sally’s Base Year starts September 30, 2015 and ends on September 30, 2016.

Sally’s Credit Weeks are determined by figuring out the number of weeks during Sally’s Base Year that she worked full-time and earned more than $50 per week. 

Sally therefore has 8 Credit Weeks, i.e. every week she worked beginning when she took the job on August 1, 2016 through the last week of her Base Year, September 30, 2016. 

How Many “Credit Weeks” Do I Need to Work During My Base Year in Order to Be Financially Eligible for Benefits Under the Pennsylvania Unemployment Law? 

A claimant with less than 16 Credit Weeks during his/her Base Year is ineligible for any unemployment benefits.  43 P.S. §804(e).

If claimant has 16 or 17 credit weeks, then he/she will be eligible for 16-weeks of benefits. If claimant has 18 or more credit weeks, then he/she will be eligible for the full 26-weeks of benefits provided for under the law. 

NOTE:  In the final EXAMPLE above, Sally would have to work to until at least February 21, 2017 in order to be potentially eligible for up to 16-weeks of benefits, and to at least March 7 to secure the maximum allotted 26-weeks.  

What Are My “Base Year Wages” Under the Pennsylvania Unemployment Law?  Can I Win Unemployment Benefits if I am Misclassified as an Independent Contractor? 


How Do I Calculate My Weekly Benefits Under Pennsylvania’s Unemployment Compensation Law?

In a post I wrote in July of 2012, I illustrated in what I hope is a clear and straightforward fashion how to determine your weekly benefit rate.  Little math is required!

How Can I Appeal and Incorrect Notice of Financial Determination?

Determining financial eligibility is in most cases a matter of simple math completed by a computer; consequently, most claimants do not have reason to dispute or appeal a Notice of Financial Determination

There are, however, two situations of common dispute where NSFs are concerned: a) situations where the claimant has no reported earnings because he/she was misclassified as an independent contractor; and, b) where a large, lump sum payment (a bonus, large commission, etc.) skewers the Base Year calculation.  See e.g. 43 P.S. §801(a) (if 20% or more of claimant’s base year earnings were earned during a single quarter claimant may be deemed financially ineligible in whole or in part).

Does a Notice of Financial Determination Mean That I am Eligible for Benefits Under the Pennsylvania Unemployment Law? 

No.  Everyone gets a Notice of Financial Determination, even if they were fired after being caught on camera stealing money from the cash register, and admitted to the deed in a sworn statement moments before being escorted out of work. That is so because one’s financial eligibility is calculated by a computer without regard to the circumstances relating to the employee’s separation from employment.

What is a Notice of Determination, and How Long Does it Take for Unemployment to Send Me Notice as to Whether I am Eligible for Unemployment Benefits in Pennsylvania? 

While financial eligibility issues are only infrequently the subject of dispute, the determination of whether an employee was terminated through no fault of her/her own (i.e. did not engage in willful misconduct or quit without a necessitous and compelling reason) is often far more contentious.

The Service’s Center’s decision on that issue is made after an investigation by the Service Center Representative, who will often take a statement over the phone from each party, along with sending out a Claimant Questionnaire and an Employer Questionnaire.

The Service Center’s findings are set forth in a Notice of Determination, which is often issued at months after the Notice of Financial Determination.   

Appealing from the Notice of Determination, the Unemployment Referee Hearing in Pennsylvania

The party who is “aggrieved” by the Notice of Determination (i.e. the claimant if benefits are denied, and vice-versa) has 15-days to appeal.  Late appeals will not be allowed absent extraordinary circumstances

When asked to set forth the basis for the appeal, it is wise to simply state “I disagree with the Determination.”  That is so because, no matter what is said on the appeal, a Referee Hearing will be scheduled. You do not want to unwittingly write something that can be used against you at the Hearing!


Employers are of course far more familiar with such Hearings than the average claimant, and frequently consult with counsel in order to prepare for same (and sometimes bring counsel to the Hearing.  Hence, it is wise to consider retaining counsel for representation at the Hearing.

Negotiating Employment Contracts for Pennsylvania Employees Since 1991
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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 Free 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.