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

10 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

Anonymous said...

I can already see what my ex employers excuse for poor performance being misconduct will be. They run a scrum shop but and have work items voted on. However, the manager insists on items being inserted and making scope changes that others are afraid to vote against because he is verbally abusive. So any deadlines missed will have been my fault not his for requiring unrealistic amount of work. Also he would fail stories that were not completed by end of sprint instead of relegating to backlog, thus throwing away the code. After four month I was glad to get fired but not looking forward to defending my actions. As a senior Dev I was told I would be a lead. Not true even though outgoing lead saw me taking his place. Even though having remote work privledges, and if late would state that I could not work on items outside business hours or on medical leave even not billing as on salary. Also specs for me were written using much more complex designs but estimated as if using simple post backs. Yet that was signed off on due to customer requesting more modern web design (quality takes longer than just quantity).

Anonymous said...

Yet I fully expect him to say others got work done on time. When others were writing much simpler code that I was expected to improve upon. And after telling me not to work late to meet deadlines, said verbally to just not reflect actual hours on timesheet despite no overtime or anything. So basically set baseline of time for projects that was used for future estimation based on a lie. Good thing I have vpn logs through router showing effort being expended and emails from other employees seeking assistance late on weekends to meet their own deadlines on much simpler projects. That I solved much more quickly than those more difficult ones assigned to myself. And the company wonders why his velocity looks so low.