Thursday, March 3, 2011

POOR PERFORMANCE IS NOT WILLFUL MISCONDUCT UNDER PENNSYLVANIA UNEMPLOYMENT LAW

Well, the title says is at, but let me say it again: You cannot be disqualified from getting unemployment on the grounds of willful misconduct because your employer deemed you a poor performer.

That does not, however, stop many employers from trying to beat you on your claim for unemployment under such circumstances.

There are many angles companies try to take in poor performance cases: 1) the employee lied about their qualifications when they applied for the job; obviously, says employer, this crappy employee could not have had all of the experience they claimed to have; 2) the employee just wasn't trying hard enough, and was not committed to the job.

Usually, though, employers recognize that those defenses are useless.  So, they resort to the number one tactic employers use to try and win an unemployment case against a perceived poor performer is:  THEY LIE ABOUT WHY THE EMPLOYEE WAS FIRED.  They essentially fabricate a reason they believe will qualify as willful misconduct and present that to the Referee at the Hearing.  By the time their done, the Referee thinks your Charlie Sheen-esq (or Lindsay Lohan, as the case may be), and you lose the case!

Employers routinely lie at Hearings under oath?! I know, I know, that sounds harsh.  And maybe, after I do my next 300 hearings, I will realize that my observations to this point are all wrong.  But I doubt it.

Employers do unemployment hearings all of the time, and they take them seriously.  Employees almost never do them, and often figure that justice will be served in their favor.  Then, they get stomped and call an attorney to help file an appeal from the Referee's decision "where all of the lies will be proved."  Too late, an appeal from a Referee's decision is based solely upon the record created at the Hearing.  That's it - finito.  Charlie Sheen it is.

That's why, in my view, employees should consider speaking with an unemployment lawyer before the Referee's Hearing is over.

John A. Gallagher, Philadelphia Unemployment Attorney

8 comments:

brwonslady said...

So my question is could a claimant then sue for "Plurgery"and "Libel and Slander", because it is unlawful to deliberately tell a lie under oath and slander a former employee work ethic?

Employment Lawyers said...

No, unfortunately - statements made in legal proceedings are completely privileged and may not provide a basis for libel or defamation cases. As far as perjury goes, that is a criminal offense that only a District Attorney can enforce and they will not be interested in what was said at a UC hearing. Since in my experience employers frequently lie at unemployment hearings, this is one of the main reasons you want a lawyer with you at the hearing.

John A. Gallagher

Anonymous said...

Could a claimant that wins a hearing because the reason the employer gave for termination was untrue (and maybe fabricated) have a claim for defamation if they employer continues to give the same reason for termination (to former co-workers, new employers calling for a referal, etc.)?

Anonymous said...

Could a claimant that wins a hearing because the reason the employer gave for termination was untrue (and maybe fabricated) have a claim for defamation if they employer continues to give the same reason for termination (to former co-workers, new employers calling for a referal, etc.)?

Anonymous said...

Could a claimant that wins a hearing because the reason the employer gave for termination was untrue (and maybe fabricated) have a claim for defamation if they employer continues to give the same reason for termination (to former co-workers, new employers calling for a referal, etc.)?

Anonymous said...

Could a claimant that wins a hearing because the reason the employer gave for termination was untrue (and maybe fabricated) have a claim for defamation if they employer continues to give the same reason for termination (to former co-workers, new employers calling for a referal, etc.)?

Employment Lawyers said...

Anonymous:

All representations made in the context of any legal or administrative proceeding are privileged, and therefore you cannot sue for defamation.

Regards,

John A. Gallagher

Lissa said...

Hi sir.having total hip replacement & i will run out of available vaca/sick time b4 im well enough 2 return 2 work.my job only has longterm dis after 6mos. Is there any disability benefits that I'm enttled to b4 then? What do i need 2 do 2 claim them if there r some