Friday, January 28, 2011

Important and Tricky New Pilot Program For Pennsylvania Unemployment Hearings Regarding Overpayment Issues

Today, I was at an Unemployment Hearing before Referee Horowitz in Norristown.  He advised me that a new Pilot Program was being tested throughout Pennsylvania with regard to overpayment issues.  And I am not a fan.

In the past (and as I previously Blogged about in depth), if Claimants who had previously been receiving benefits were thereafter determined to be ineligible for benefits, they would receive two Notices at the same time: 1) a Notice of Determination stating they were ineligible for benefits (i.e. due to willful misconduct or voluntary quit); 2) a Notice of Determination that the benefits they received prior to the Notice of Determination regarding their ineligibility had to be paid back.  This latter Determination also included a finding as to whether the overpayment was an "at fault" overpayment (i.e. it is believed the Claimant lied on his/her application) or a "non-fault" overpayment (i.e. the Claimant told the truth in his/her application, but the UC Service Center nevertheless ruled against his/her eligibility.)

As discussed in my prior Blog, there would then be a Hearing on two issues: 1) whether the Claimant was eligible for unemployment (i.e. did not engage in willful misconduct or quit with good reason); and, 2) whether, if the Claimant was deemed ineligible for benefits by the Referee, he/she received an "at fault" or "non-fault" overpayment.  If you won the first issue, you automatically won the second.  If you lost the first, you could win the second anyway (i.e. establish that it was a non-fault overpayment, a virtual win).

Now, under this new pilot program, overpayment Notices of Determination will not be issued until after the Referee makes his/her determination as to whether the Claimant is eligible for benefits

I think this presents a bit of a problem.  First of all, Claimants who have already received benefits and are later ruled ineligible will not be put on notice that they may have to pay back the benefits they already received.  In fact, it is logical to conclude that some will think they will not have to pay them back. Second, it creates a great area of uncertainty for Claimants, who are unfamiliar with the unemployment process.  Third, since Claimants will not fully understand what is at stake in their Hearing, they are more likely to not show up, or to show up unprepared.

So here is what you need to know:  If you have already received benefits and are later deemed ineligible for benefits, and then lose the Hearing on the Referee on that issue, you will receive a second Notice of Determination advising you that it has been determined that you have an overpayment.  Although you can and should appeal that Determination, you will not at that overpayment Hearing be permitted to argue that you should be deemed eligible for benefits, because you will have already lost that issue!

I can already foresee many calls coming in from Claimants who have received overpayment determinations asking if we can at the Hearing on that issue "relitigate" the prior Referee's Decision finding them ineligible on grounds of willful misconduct or voluntary quit ("I didn't have a lawyer," "the employer lied," "I have evidence I did not submit," "I did not show up because...").  The answer will, sadly, be "No."  One bite at the apple is all that one gets.

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