Sunday, September 8, 2019

What is an "At Fault" or "Fraud" Overpayment Under Pennsylvania Unemployment Law

Why Have I Received Notice of an At Fault Overpayment from Pa Unemployment?

The two most common reasons for at at fault overpayment are as follows:

1) when you initially applied for benefits you said your separation was due to lay off or reduction in force and the employer, having been notified of your application, stated that it was a termination or a quit; or,

2) having been deemed eligible for unemployment benefits, you thereafter, while receiving benefits, took work as on a 1099 basis, did not tell unemployment it was 1099 work and have therefore been deemed to be self-employed, no longer eligible for benefits and guilty of "lying" to unemployment about your new "career" while continuing to receive benefits.

How Can I Win an Unemployment Overpayment Referee Hearing in Pennsylvania? 

Martha Stewart was jailed not for insider trading but, rather, because she lied to the SEC during its investigation into whether she was guilty of such a crime.  In Pennsylvania, you are not automatically guilty of an overpayment even if you lied or withheld information intentionally or accidentally. Instead, if you win on the "underlying" issue before the Referee, the overpayment goes away.

Consider these common examples:

Employee One is fired but claims she was laid off.  She initially gets benefits for 6 weeks (everyone who says they were laid off immediately begins getting benefits pending any investigation), but the Service Center believes the employer's claim that she was filed for "willful misconduct."  She gets two Notices of Determination, one saying she is ineligible for benefits because she was fired for misconduct, and the other saying she has to pay back the 6 weeks of benefits she falsely received, with penalties (ouch!!!).

Employee One (who really should consider hiring counsel in this scenario) goes to Referee Hearing and wins because employer unable to prove she engaged in willful misconduct.  Her eligibility for benefits is reinstated, and the overpayment determination evaporates.  Poof!

Employee Two is laid off, and thus begins getting benefits immediately.  He then agrees to do some intermittent 1099 work for a company that tells him when, where and how he should do the work in question.  He reports the wages he receives when he gets his first check (a month after he started doing the work), but does not indicate that he is "self-employed," because he is not.

Months later, after he has reported more such wages, unemployment investigates (suspicion being caused by the absence of any reported w-2 wages), finds out he was being paid 1099 (because he admits it on the phone), stops his benefits and sends him a determination saying he has to pay back all 5 months of benefits he received, with penalties (yikes!!!).

Employee Two (who really should consider hiring counsel in this scenario) goes to Referee Hearing and proves he is neither self-employed (he has no company, no website, rents no space, has no business cards, has no employees, etc.) or an independent contractor (since the employer controls everything he does in most respects.  Since proof of either would be enough to escape the jam, he wins, his benefits are reinstated and his "overpayment" is extinguished.  Abra cadabra!



Friday, September 6, 2019

UNDERSTANDING HOW THE FEDERAL JUDICIARY WORKS IN PENNSYLVANIA


How the Federal Court Operates in the Eastern District of Pennsylvania

The Mysteries of the Judiciary Revealed!
Recently, I attended an excellent Seminar put on by the Philadelphia Bar Association that featured a number of jurists who sit on the Eastern District of Pennsylvania and the Third Circuit.  We heard from Magistrates, Trial Judges and Appellate Judges on numerous “hot button issues.”  As is the custom, the Panel released statistics disclosing the percentage of cases that reach trial, and those relating to successful appeals.  

What is the Difference Between a Civil and Criminal Case?

The largest difference between civil and criminal cases is that crimes are considered offenses against the state or society as a whole, not individuals. In civil cases, defendants are usually up against individuals or individual companies, groups, etc . Punishments between the two are different, as well as the standards of evidence: civil cases usually require proof “by a preponderance of the evidence (i.e. 51%), whereas criminal cases must often be proved “beyond a reasonable doubt”.

Criminal cases are almost always allowed a trial by jury, and defendants are entitled to an attorney under the Sixth Amendment. Civil cases do not necessarily allow a trial by jury, and if a defendant cannot afford an attorney, they must represent their own case.

How Many Civil Cases are Filed in the Eastern District of Pennsylvania?

CIVIL

Office 2
Philadelphia
Office 5
Allentown/Reading
Total Filings
2015
8,513 | 89.7%
981 | 10.3%
9,494
2016
7,105 | 86.6%
1,104 | 13.4%
8,209
2017
6,101 | 85.3%
1,052 | 14.7%
7,153
2018
5,741 | 84.6%
1,048 | 15.4%
6,789
2019*
1964 | 84.2%
369 | 15.8%
2,333

Overall, the civil case filings in both Philadelphia and Allentown/Reading have gone down in the last 4 years. Because Philadelphia’s civil case rate has been dropping more drastically, the percentage of civil filings that take place in Office 5 have gone up 5.5% since 2015. Despite this, the overall number of filings in both continues to go down.

What is the Difference Between District Judges and Magistrates?


What is the Difference Between a Trial by Jury and a Trial by Bench?

Trials by jury, as the name suggests, are trials where the verdict is partially decided by a group of jurors. They are usually 12 randomly selected citizens who are talked through the process by the judge and meet together to discuss the outcome of the trial. Trials by jury are more common in criminal cases. Trial by bench is when a trial is decided strictly by the judge or magistrate involved in the case. They are also usually less complex than trials by jury, and can oftentimes be slightly less formal.

Soon, I will provide additional content concerning other interesting information provided during the seminar.


Questions? Call 610-647-5027 for a Free Telephone Consultation

Wednesday, July 10, 2019

March 2019 Unemployment Rates for Philadelphia and Surrounding Counties Lowest in Years


Unemployment Rate in Chester County, Pennsylvania is the Lowest in the State


Philadelphia's Three Bedroom Counties Enjoying Historically Low Unemployment Rates
Chester County Has the Lowest Rate of Unemployment in Pennsylvania

According to an article published by the Philadelphia Inquirer last week, the unemployment rate in Chester County, Pennsylvania is so low that some industries are unable to keep up with their labor demands. Right now, the unemployment rate sits at 2.6 percent: the lowest in the state.

Some Industries in the Chester County Area Face a Labor Shortage.

The chief executive of the Chester County Chamber of Business and Industry told the Philadelphia Inquirer that for every one person looking for a job, two or three are available. There were 25,532 online job postings for Chester County in April, according to the Department of Community Development. This is consistent with the usual yearly trend of job postings going up in April, and when considering the current unemployment rate, it is no surprise that there are labor shortages.

How is Unemployment Defined?

Not everyone without a job is considered “unemployed”. According to the Bureau of Labor Statistics, unemployment is defined as people who do not have a job, have looked for a job within the last 4 weeks, and are available for work. People who have been laid off and are waiting to be called back are included in unemployment statistics.

How do the Unemployment Rates of Other Philadelphia Suburban Counties Compare to that of Chester County?

Chester County is not the only county in the Philadelphia area whose unemployment rate has dropped steadily over the last few years.

Since 2017, the rate in Pennsylvania as a whole has gone down by 0.8 percent

What is the Unemployment Rate in Montgomery County, PA?

In Montgomery County, which currently has an unemployment rate of 3 percent, it has gone down by 0.9 percent. 

What is the Unemployment Rate in Delaware County, PA?


What is the Unemployment Rate in Bucks County, PA?

In Bucks County, it has gone down by a full 1 percent, and now sits at 3.4 percent. Even in the city it has gone down: between 2017 and 2019, the Philadelphia County’s unemployment rate has dropped 1.6 percent, leaving it at 4.6 percent.
  
In fact, all eleven Philadelphia area counties have lower unemployment rates now than they did in 2017. During the month of March alone, over 10,000 people went from being unemployed to employed in the state of Pennsylvania.

Despite this, some Pennsylvanians - particularly those in Philadelphia - believe that the availability of jobs is not enough. Many people are of the opinion that the ability to get a job is useless if it does not pay enough to make a living, which is often the case in the city.

What Industries are Seeking Workers in Chester County?

While there are opportunities in nearly every industry right now - nursing, technology, customer service, financing, etc. - the agriculture and transportation industries have the most open positions.


Kennett Square’s Phillip Mushroom Farms alone is seeking 30-40 more people, namely harvesters. It is not a job that requires much education or previous experience, so it is accessible to nearly everyone looking for a full time position.

The transportation is similarly searching for full time workers. It is also another industry with on-the-job training and only lower education requirements. There were nearly 4,000 postings in April related to the industry, however, with the rise of online shopping, truck driving has gone down in popularity.

Vanguard's Main Office in Malvern PA
The Vanguard Company Inc., an investment company with its headquarters in Malvern (Chester County), is also one of the hiring powerhouses in the Philadelphia suburbs. As of July 2019, the company had over 300 positions open when the Inquirer article was written, ranging from entry level to supervisory positions.

John A. Gallagher, Esquire
has been Representing Pennsylvania's Workforce since 1991
Philadelphia Area Unemployment Lawyer Representing Employees 
                       in Unemployment Referee Hearings


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, Frazer, Phoenixville, Downingtown, Coatesville, West Chester, Newtown Square, Nether Providence, Springfield, Aston, Broomall, Marple, Villanova, Lansdowne, Wayne, Ardmore, Bryn Mawr, Glenolden, Havertown, Haverford, Limerick, Oaks, Lansdale, Chalfont, 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

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

Monday, July 1, 2019

Pennsylvania to Seal 30 Million Criminal Records Due to “Clean Slate” Law


If You Were Convicted of a Non-Violent Crime in Pennsylvania Before 2009, Your Criminal Record Will be Sealed (If ALL of your Fines are Paid!!)
Clean Slate for Cool Hand Luke!

The law was created with the goal of helping individuals get their lives back on track, something that is no easy feat with a criminal record. By the time it is fully implemented, it will wipe out about half the records in the state court’s data base. It passed with a near unanimous vote last year.

Pennsylvania's state courts will have until June of next year to seal 30 million records automatically without people filing court petitions.

Pa.'s Clean Slate Law is the First of its Kind!
Do you Qualify to Have Your Criminal Record Sealed in Pennsylvania?

Not everyone qualifies to have their criminal record sealed, but many do. Those who were found not guilty, involved in a non-violent crime more than 10 years ago, or charged with misdemeanors that resulted in less than two years in prison will be sealed. Also included are criminal history charges that resulted in no convictions.

Governor Wolfe Signs Clean Slate Law into Effect - 2018
All of your Court Fines and Fees Must be Paid off in Order to Qualify to have your Criminal Record Sealed in Pennsylvania

Any fees or fines you have with the court must be paid off. Usually, they are only owed on cases where you were convicted or given a diversionary program.

Individuals who have committed serious crimes such as child endangerment, sexual assault, violence, and homicide do not qualify to have their record sealed.

While most people who qualify will be included in the automatic sealing of records over the next year, some may not be. You can check on the court’s website to see what is on your public record and if it has been sealed yet. If it has not been sealed by June 2020, you may petition the court to seal old charges. This process varies from court to court, so it is best to call and check with yours when the time comes.


In summary: No. You do not have to disclose your criminal record under most circumstances. 

Leave the Ball and Chain off of Your Application if Record Sealed

Do I have to Disclose my Criminal Record to a Pennsylvania Employer if my Record is Sealed?


Community Legal Services of Philadelphia explains that if the information is requested by a criminal justice agency or disclosure is demanded by federal law, then you will have to disclose it for legal purposes. The only other time your record may be required to be disclosed is if a job requires an FBI background check. However, very few jobs do, and you will know if you are being subjected to one because you will be asked to give your fingerprints.

What if the Clean Slate Law does not help me?

As mentioned before, if you have misdemeanors and other minor crimes on your record, you may petition the court to have your record sealed. In more extreme cases, you may want to pursue a pardon by the Governor.
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 Employment Lawyer Provides Free Telephone Consultations (15 Minutes in Duration)

If you are looking for an employment lawyer, and live in Malvern, Paoli, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Villanova, Newtown Square, Conshohocken, Exton, Philadelphia, West Chester, Skippack, Langhorne, Lower Gwynedd, 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 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 Referee Hearings throughout Pennsylvania.

Thanks for checking in with us.



Monday, April 22, 2019

United States Supreme Court to Decide Whether Discrimination Based Upon Sexual Preference Illegal Under Title VII


Important Case Will be Given Great Consideration
Is Employment Discrimination Based Upon Gender Identity or Sexual Preference Illegal?

The Supreme Court announced today that it would decide whether Title VII (aka The Civil Rights Act of 1964) , America’s foremost anti-discrimination in the workplace statute, makes it illegal for employers to discriminate against gay and transgender workers.

Most federal appeals courts have interpreted the law to exclude sexual orientation and gender identity discrimination. Recently, however, contrasting decisions from two different federal circuit courts have made clear that a split in authority nationwide warrants a potentially defining decision by SCOTUS.


Gay Rights Cases to be Decided by the U.S. Supreme Court in 2019

The Supreme Court agreed to hear the case from New York, Altitude Express Inc. v. Zarda, No. 17-1623, along with one from Georgia that came to the opposite conclusion, Bostock v. Clayton County, Georgia, No. 17-1618. 

We Are All the Same - Just Different
In New York, Zarda was a sky-diving instructor who said he was fired because he was gay. The United States Court of Appeals for the Second Circuit concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”

In Georgia, Bostock was a child welfare services coordinator who said he was fired for being gay. The 11th Circuit, in Atlanta, ruled against him in a short, unsigned opinion that cited a 1979 decision that had ruled that “discharge for homosexuality is not prohibited by Title VII.”

Although it is universally accepted that the current configuration of SCOTUS is in the majority “conservative,” which in this regard would lead some to conclude that the rights of gay workers will not be protected here, the cases are of such monumental importance that it would in my view be a mistake to anticipate an “automatic win” for the “far right.”


The City of Brotherly Love
Philadelphia’s Anti-Discrimination Law Protects Employees from Discrimination Based Upon Their Gender Identity or Sexual Preference

If you work in Philadelphia, the Supreme Court’s eventual decision may have more limited personal impact, because Philadelphia's Fair Practices Ordinance is one of the strongest anti-discrimination in the workplace laws in the United States, making it illegal for employers within the city limits to discriminate against an employee because of his/her sexual preference, gender identity, marital status or familial status 

Handling Employment-Related Disputes 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 (15 Minutes in Duration)

If you are looking for an employment lawyer, and live in Malvern, Paoli, Villanova, Ardmore, Bryn Mawr, West Chester, Media, Doylestown, Donwingtown, Glenside, Lansdale, Wayne, King of Prussia, Radnor, Exton, Newtown Square, Philadelphia, Springfield, Skippack,  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.
  
John A. Gallagher 610-647-5027jag@johnagallagher.com
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.

Thanks for checking in with us.

Monday, April 8, 2019

Are Settlements in Discrimination Cases Subject to Taxes?

If I Settle a Discrimination Claim, Do I Have to Pay Taxes?

The answer to this question is - Yes - and it has been that way for some time.

UGH!
In 1996, Congress reversed nearly seventy-five years of settled law by amending § 104(a)(2) of the Code, making damages recovered for personal non-physical harms (e.g., emotional distress) taxable.
This law is known as the Small Business Job Protection Act of 1996, Pub. L. No. 104-188, § 1605, 110 Stat. 1755, 1838 (codified at I.R.C. § 104).

The SMJPA makes it clear that taxes must be paid on all recoveries made in a discrimination case, even if some of the settlement is payment for emotional distress. 

Employment Discrimination Settlements Are Taxable

In a discrimination lawsuit, the relief that is granted is what is known as a "make whole remedy," i.e. a payment of money that puts the plaintiff in the same position that he/she would have been absent the discrimination.  For plaintiffs that have lost income as a result of illegal discrimination due to failure to receive a promotion, demotion, constructive discharge or termination, this means a payment of lost wages and benefits subject to taxation just as if the plaintiff had not been fired, etc.

Do I Have to Pay Taxes on an Employment Discrimination Settlement?

Think of it this way.

Jane Doe was employed by Company and paid a salary of $50,000 in 2018.  Her take home pay after taxes and withholdings was $35,000.  On January 1, 2019, she was fired.  She does not find a job until the December 2019. She sues and agrees to settle for $51,0000, which the parties agree is allocated 11 months of lost pay, i.e. $46,0000, plus $4,000 for emotional distress. Pursuant to the SMJPA, all of her recovery is subjected to taxation, i.e. she will ultimately receive the same net of $35,000 just as if she had worked all of 2019 for Company.

THIS IS NOT TAX ADVICE.  I AM NOT A CERTIFIED TAX ATTORNEY. CONSULT A LICENSED PROFESSIONAL TAX ADVISOR FOR ADDITIONAL INFORMATION.


Representing Pennsylvania's Workforce Since 1991

Philadelphia Area Wage and Hour Attorney Helping Employees Collect Wages, Compensation, Bonuses and Severance on a Contingent Fee Basis Attorney Representing Employees

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

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Wage and Hour Lawyer Provides Free Telephone Consultations and Contingent Fee Representation

If you are owed money by your employer, are looking for a contingent fee lawyer who is experienced in collecting wages, compensation, bonuses and severance from corporations that withhold payment from their employees and or work in Paoli, East Nottingham, Malvern, Easton, East Whiteland, Edgemont,  Elkins  Park,  Elverson,  Essington, Exton,  Springfield, Feasterville Trevose, Fleetwood, Flourtown,  Folcroft,  Folsom, Fort Washington,  Franconia, Gap, Gilbertsville, Gladwyne,  Glen Mills,   Glenolden,  Glenside, Green Lane, Gwynedd,  Gwynedd Valley, Hanover, Harleysville, Hatboro,  Hatfield, Haverford,  Havertown, Honey Brook,  Horsham, Huntingdon Valley, Newtown Square,  Jenkintown, Kennett Square,  Kimberton,  King Of Prussia, Kutztown, Lafayette Hill,  Lancaster,  Langhorne,  Lansdale,  Lansdowne, Lawrence Park, Levittown, Limekiln, Limerick, Lionville, Lititz, Londonberry, Lower Merion, Bryn Mawr, Wayne, Villanova and Lower Moreland or any surrounding areas, 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 Contingent Fee Lawyer to Collect Money You Are Owed by Your Former Employer?

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.

Thanks for checking in with us.