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Based upon our experience, here are the most common Questions about Pennsylvania unemployment benefits, and some (hopefully clear) Answers (click on any Links to jump):
1) If I am About to get Fired and I Quit my Job Instead, is that Considered a Resignation or a Termination for Purposes of Unemployment in Pennsylvania?
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| Unless Your Termination is IMMINENT, Quitting Can Make Winning Benefits Difficult |
Reason Question is Important: It is much easier to win benefits when you have been fired than it is when you have quit.
Quick Answer: A "quit" will be deemed a "fire" only if you are told that you will be fired immediately unless you resign first.
So....
If you are told that if you do not resign immediately then you are going to be fired that day, then your resignation will, for unemployment purposes, be deemed a termination (and not a quit). That is a good thing.
If you are told that it is extremely likely that you are going to be fired at some point in the very near future, and are then given a chance to resign either immediately, or after you think it over for a day or two, then your resignation will, for unemployment purposes, be deemed a quit. That is a bad thing.
Suggestion: Unless you are certain that you can prove that your resignation was submitted in lieu of a certain and immediate termination, hang in there and let them fire you.
Quick Answer: Yes. On the bi-weekly application you are asked if you have "worked" in the past two weeks. "Work" means doing something with an expectation of payment, or at least a hope of payment (if you take a sales job). "Work" does NOT mean doing and something and getting paid. Also, if you are working as an independent contractor (i.e. getting paid on a 1099 basis as opposed to a W-2 basis), you are employed, you are working. Click Here to read the "legal test" utilized to determine if you are in fact an independent contractor under section 402(h) of the Pennsylvania Unemployment law.
2A) If I am working part-time as an independent contractor in Pennsylvania, will my unemployment benefits be cut off?
Quick Answer: Yes, if Pennsylvania Unemployment finds out through your self-reporting or otherwise that you are working as an independent contractor while receiving benefits, you will immediately be cut off from receiving benefits even if you are only working part-time hours. That is because independent contractors are deemed to be self-employed, and people that are self-employed are deemed to be running their own business on a full-time basis, and are therefore deemed to be longer available for work, and therefore are disqualified from receiving benefits.
You may want to read the above paragraph twice; this issue causes a lot of problems for many people. The reasons for this rule are complicated. However, what you need to know is: Unemployment uses this rule all of the time to disqualify people from receiving benefits.
And, if you received benefits while working on a 1099 basis and Unemployment finds out about it after the fact, you will be hit with an overpayment, and that can be very bad.
Misclassification is Rampant - But Are You Actually an Employee???
3) If I take a job as an independent contractor while on Pennsylvania Unemployment and report that employment to Unemployment, will my benefits stop?
Quick Answer: In all likelihood, yes. Then you will have to file an appeal and you will get a Hearing before an Unemployment Referee. At that hearing, your benefits will be reinstated if you can prove that you are in fact an employee. In other words, the mere fact that you are designated as an independent contractor does not make it so. We win many Unemployment Hearings wherein we prove that our client in fact was was misclassified as an independent contractor, and is therefore entitled to continuing benefits or not liable for an overpayment.
4) If I sign a contract saying I am an independent contractor, does that mean Pennsylvania Unemployment will automatically determine that I am an independent contractor?
Quick Answer: The Pennsylvania Service Center will usually find that you are an independent contractor if you signed a contract saying as much. However, we win many, many cases before Unemployment Referees holding that people are not independent contractors even though they signed a contract saying that they were. As we say, you can call a Chevy a Mercedes, but it's still a Chevy.
5) If I am fired for poor performance, will I be able to collect unemployment in Pennsylvania?
Quick Answer: Yes. Poor performance is not willful misconduct under section 402(e) of the Pennsylvania Unemployment law. Be careful, however. Employers know this and often try to fabricate reasons for your termination at the Unemployment Hearing in order to try and convince the Referee that you were fired for willful misconduct.
Much Easier With Legal Counsel
Think of Us Like a Good Defensive Line!
6) What Happens at a Pennsylvania Unemployment Hearing Before Referee?
Quick Answer: Usually, they take place in a 15 x 15 room. You (and your witnesses and counsel) on one side of the table, the employer (and its witnesses and counsel on the other side). The Referee sits at the head of the table. Everyone is sworn in. Exhibits found within the unemployment file are marked as evidence, and each side gets a chance to object to any exhibit. If the issue is willful misconduct, the employer provides testimony and evidence first as to why you were fired. You get to object to any exhibits and testimony, and then cross-examine the other side. Then it is your turn to testify, introduce exhibits and be subject to cross-examination. Closing arguments are held, and case is closed. Decision usually follows within 1-4 weeks (no precise timetable exists). Click Here for a more complete discussion of how to prepare for an Unemployment Hearing.
Quick Answer: Usually, they take place in a 15 x 15 room. You (and your witnesses and counsel) on one side of the table, the employer (and its witnesses and counsel on the other side). The Referee sits at the head of the table. Everyone is sworn in. Exhibits found within the unemployment file are marked as evidence, and each side gets a chance to object to any exhibit. If the issue is willful misconduct, the employer provides testimony and evidence first as to why you were fired. You get to object to any exhibits and testimony, and then cross-examine the other side. Then it is your turn to testify, introduce exhibits and be subject to cross-examination. Closing arguments are held, and case is closed. Decision usually follows within 1-4 weeks (no precise timetable exists). Click Here for a more complete discussion of how to prepare for an Unemployment Hearing.
Or Go To:
Should I Hire a Lawyer for
My Unemployment Appeal Hearing in Pennsylvania?
Why Hire An Attorney for My
Pennsylvania Unemployment Hearing?
7) Why Do Employers Fight Unemployment Claims in PA?
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| It's all about the Benjamins |
Quick Answer: Primarily, to save money. Large employers (say,with more than 100,000 employees) have to pay your claim directly out of their pocket. So, if you are getting $573 per week in unemployment, it comes directly out of the funds of a large company. Smaller companies have to pay an unemployment tax every time they make payroll. When someone is successful in obtaining unemployment benefits, the amount taxed goes up. The tax is not small, either. A company with 5 or 6 employees who has had 2 employees obtain unemployment benefits over the past year or so may pay hundreds of dollars per month in unemployment taxes.
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| If it ended like this, they may fight your claim |
(and sometimes dishonest) defense from your former employer in any Unemployment Hearing!
No Set Time for a Determination, but Often Within 8 Weeks of Application
8) How Long Does it Take to Get Pennsylvania Unemployment Benefits?
Quick Answer: Anywhere from 2 weeks (if you have been laid off or are subject to a reduction in force) to 45 days or more (if you quit or were fired). The Unemployment Compensation Service Center is not subject to any time limits; there is no law or regulation that requires them to decide your claim within any specific time frame.
Just Because You Are Financially Eligible
Doesn't Mean You Will be Awarded Benefits
Quick Answer: No. EVERYONE who files for unemployment automatically gets a Notice of Financial Determination, no matter why their employment ended. All that this form does is tell you how much in benefits you will receive if you actually do qualify for unemployment.
10) I am Receiving Unemployment Benefits from Pennsylvania, Does That Mean My Claim Has Been Approved?
Quick Answer: Not necessarily. Sometimes benefits are granted, and that decision is later changed or reversed. Here are some of the common reasons it happens:
a) you state that you were laid off, let go for lack of work or victim of a reduction in force. When you do this, benefits are paid immediately. However, as discussed below, if the employer disagrees with why you said you were let go, you may later see your benefits stopped, or may be required to go to a Hearing before an Unemployment Referee to keep them; or,
b) the employer failed to initially respond to request for unemployment for information. In these type cases, you apply and say, for example, that you were let go for poor performance. As discussed below, the employer is contacted by the Unemployment Service Center and asked to confirm or deny the facts you stated in your application. The employer initially fails to respond, so benefits are then issued to you. However, there is no hard and fast deadline for an employer response. That is why, sometimes months later, when you think you are "in the clear" you get a Notice of Determination either granting or denying you benefits. Sometimes, if the NOD is against you, your benefits will stop.
The Notice of Determination is the key document in any unemployment dispute.
No matter what, either you or the employer have 15 days to appeal from the NOD, and you may still have to win at a Hearing before an Unemployment Referee in order to get your benefits reinstated (if they suddenly stop) or to have them continued. If you or the employer miss that 15 day deadline, the determination of the Service Center found within the Notice of Determination is the final word on the issue. Late appeals are almost never allowed. If an appeal resulting in a Hearing before a Referee is filed, the the decision of the Service Center found within the Notice of Determination loses all of its relevance and effect.
Be Honest About What the Employer Said Was the reason You Were Fired; if the Service Center Feels You Lied on Your Application, You Will Likely be DENIED
11) How Does the Pennsylvania Unemployment Service Center Decide if I Get Benefits?
Quick Answer: Upon your application, the Service Center notifies your employer that you have filed a claim, and advises the employer as to what you said was the reason for your separation from employment on your application (i.e. lay off, reduction in force, termination, quit, etc.) If you stated your were laid off or subject to a reduction in force, then you will get benefits without delay virtually as soon as you apply. [CAUTION: That does not mean your claim cannot later be denied!!! See below] If you said you quit or were terminated, you will likely not receive any benefits until the Service Center has finished its investigation, and only if it rules in your favor.
CAUTION: Many folks who are worried about their finances state in their application that they were laid off or let go for lack of work, when in fact they were terminated or quit. They then cross their fingers and hope that Unemployment won't investigate their application or that their former employer won't "fight their claim" This is a bad idea. Unemployment investigates every claim, and employers almost always state the reasons for the separation in response. Misstating why you are no longer employed on your application can lead to serious problems. We strongly urge against it.
Click Here to read more on the Pennsylvania Unemployment Application process.
If, after having been advised by the Service Center that you have filed for unemployment, the employer reports back to Unemployment that you were laid off, let go for lack of work or victim of a reduction in force, you will hear nothing further from the Service Center and your benefits will be paid. If, however, the employer disputes the reason you gave for your separation, or if it asserts that you were fired because you did something bad (willful misconduct) or quit without good reason, the Service Center typically engages in a further investigation. This investigation typically consists of sending out a "Claimant Questionnaire" and an "Employer Questionnaire." Once this is done, the Service Center issues a "Notice of Determination" setting forth their findings.
So, the possibilities look something like this:
a. You state you were laid off, let go for lack of work or victim of a reduction in force; benefits will be paid immediately to you but, if after the Service Center investigates your claim, it determines that you quit without good reason or were fired for willful misconduct, your benefits will be stopped and you will have to win them back at a Referee Hearing. You may be liable for an overpayment, with penalty, if you lose the Hearing and it is determined you lied on your initial application. If you win the Hearing, all is well;
b. You state you quit, but for good reason. You will not receive any benefits unless and until the Service Center determines whether your reason was good enough under the law to make you eligible for benefits. If the Notice of Determination ("NOD") is in your favor, you will be awarded benefits and keep them unless the employer appeals, and you later lose at the Referee Hearing. If the NOD is against you, then you must appeal and win the Referee Hearing to get benefits, which will be awarded retroactively if you win (Oh, happy day!).
c. You state you were terminated, and explain why. You will not receive any benefits unless and until the Service Center determines whether or not you engaged in willful misconduct. If the Notice of Determination ("NOD") is in your favor, you will be awarded benefits and keep them unless the employer appeals, and you later lose at the Referee Hearing. If the NOD is against you, then you must appeal and win the Referee Hearing to get benefits, which will be awarded retroactively if you win.
Quick Answer: Upon your application, the Service Center notifies your employer that you have filed a claim, and advises the employer as to what you said was the reason for your separation from employment on your application (i.e. lay off, reduction in force, termination, quit, etc.) If you stated your were laid off or subject to a reduction in force, then you will get benefits without delay virtually as soon as you apply. [CAUTION: That does not mean your claim cannot later be denied!!! See below] If you said you quit or were terminated, you will likely not receive any benefits until the Service Center has finished its investigation, and only if it rules in your favor.
CAUTION: Many folks who are worried about their finances state in their application that they were laid off or let go for lack of work, when in fact they were terminated or quit. They then cross their fingers and hope that Unemployment won't investigate their application or that their former employer won't "fight their claim" This is a bad idea. Unemployment investigates every claim, and employers almost always state the reasons for the separation in response. Misstating why you are no longer employed on your application can lead to serious problems. We strongly urge against it.
Click Here to read more on the Pennsylvania Unemployment Application process.
If, after having been advised by the Service Center that you have filed for unemployment, the employer reports back to Unemployment that you were laid off, let go for lack of work or victim of a reduction in force, you will hear nothing further from the Service Center and your benefits will be paid. If, however, the employer disputes the reason you gave for your separation, or if it asserts that you were fired because you did something bad (willful misconduct) or quit without good reason, the Service Center typically engages in a further investigation. This investigation typically consists of sending out a "Claimant Questionnaire" and an "Employer Questionnaire." Once this is done, the Service Center issues a "Notice of Determination" setting forth their findings.
So, the possibilities look something like this:
a. You state you were laid off, let go for lack of work or victim of a reduction in force; benefits will be paid immediately to you but, if after the Service Center investigates your claim, it determines that you quit without good reason or were fired for willful misconduct, your benefits will be stopped and you will have to win them back at a Referee Hearing. You may be liable for an overpayment, with penalty, if you lose the Hearing and it is determined you lied on your initial application. If you win the Hearing, all is well;
b. You state you quit, but for good reason. You will not receive any benefits unless and until the Service Center determines whether your reason was good enough under the law to make you eligible for benefits. If the Notice of Determination ("NOD") is in your favor, you will be awarded benefits and keep them unless the employer appeals, and you later lose at the Referee Hearing. If the NOD is against you, then you must appeal and win the Referee Hearing to get benefits, which will be awarded retroactively if you win (Oh, happy day!).
c. You state you were terminated, and explain why. You will not receive any benefits unless and until the Service Center determines whether or not you engaged in willful misconduct. If the Notice of Determination ("NOD") is in your favor, you will be awarded benefits and keep them unless the employer appeals, and you later lose at the Referee Hearing. If the NOD is against you, then you must appeal and win the Referee Hearing to get benefits, which will be awarded retroactively if you win.
Appeals may be Filed by Either Side if Done So
Within 15 Days of the Notice of Determination
12) How Do I Know if My Employer Has Appealed the Notice of Determination I Received from Pennsylvania Unemployment Service Center?
Quick Answer: So, now you have received a Notice of Determination stating that the Service Center has found in your favor, and you are entitled to benefits. The NOD provides the employer 15 days to appeal (which will lead to a Hearing before an Unemployment Referee). If the employer does appeal, you will not receive any notice of the appeal from Unemployment (odd, I know). Rather, the first notification you will get of the employer's appeal is a Notice of Hearing. In most cases, the Notice of Hearing is sent out within 2-3 weeks of the employer's appeal. So, if you receive a NOD in your favor, you will not know you are "safe" until at least 30 days after you receive the NOD.
13) What Should I Say When I Appeal From a Notice of Determination from the PA Unemployment Service Center?
Quick Answer: So, the Service Center has determined that you are ineligible for benefits. You have 15 days to appeal (and thus get a Hearing before an Unemployment Referee). What should you say? As little as possible. You do not need to prove anything or say anything in order to get a Hearing. The more you say, the more that can be used against you at the Hearing. So, simply say, "I disagree with the determination." That is all you need to say, and all you should say.
14) Why Am I Being Accused of an Overpayment by Pennsylvania Unemployment?
Quick Answer: Overpayments come about when it is believed that you have received benefits to which you were not entitled. This happens in one of 2 typical situations:
Scenario 1: you were paid benefits which the Service Center later determined you should not have been paid.
Scenario 2: while receiving benefits to which you were entitled, you failed to report earnings from another job (usually, a part-time job or independent contractor position).
In Scenario 1, a "non-at fault overpayment" comes about when you received benefits through no fault of your own due to a delay by the Service Center in deciding you are not entitled to benefits. See Number 10, above.
In Scenario 1, an "at fault" overpayment comes about when you received benefits because Unemployment believes you have lied on your initial application (for example, you said that you had been laid off, but your employer states that you were fired for willful misconduct).
In Scenario Two, you either fail to report earnings from a part-time job (whether as a W-2 employee or as a 1099 independent contractor). Another possibility is that you told Unemployment about the part-time employment, but did not tell them you were being paid as an independent contractor. In either situation, when they find out, they conclude that you lied, and say you received benefits under false pretenses this then leads to an "at fault overpayment" determination.
15) How Do I Win an Appeal of an Overpayment Determination?
Quick Answer: If you are told that you have received an overpayment, you appeal ("I disagree with the determination"), and then you get a Hearing before a Unemployment Referee. Win the underlying issue (i.e. prove you were not fired for cause, prove you were in fact an employee and not an independent contractor, etc.), and the determination that you were overpaid will be reversed. So, in many cases we have handled, an employee who was once getting benefits has been cut off, and told they have to repay everything they have received in the past. When we win, we not only have the benefits reinstated, but the overpayment determination is reversed as well. Those are sweet victories!
16) Can I Get Unemployment if I Choose Early Retirement in Lieu of Termination?
Quick Answer: No. If you are retired, you have taken yourself out of the workplace and cannot receive unemployment benefits in Pennsylvania. Unemployment only pays benefits to those persons who are out of work through no fault of their own, and who are actively seeking work. If you are forced to retire, you satisfy the first prong of the equation, but not the second. Unless there are substantial benefits to early retirement, you should just let them fire you instead of electing to take unemployment. Then, it will be up to you to advise unemployment if you are retired or actively looking for work.
Another thing to bear in mind: If you elect early retirement, you may be forfeiting your right to make a claim for age discrimination!
17) Can I Conduct "Discovery" Prior to My Pennsylvania Unemployment Hearing?
Quick Answer: Yes, on a rather limited basis.
Discovery is the process of learning about the other side's case prior to a Hearing. Typically, there is little opportunity to conduct discovery before an Unemployment Hearing. Here is what you can do: The File for your Hearing is ALWAYS delivered to the place where your Unemployment Hearing is going to be conducted at least two weeks before the Hearing is to be held. You may go to the Hearing location at any time, present your Notice of Hearing, and obtain a copy of the file for your review. They will usually make a copy of the file for you, if you ask politely!
What to look for? The Employer's Questionnaire, which will include answers provided by your former employer to the Service Center that will detail your employer's position on your case. The file may also include documents that your former employer submitted to the Service Center to "prove" its case.
You may ask to have the Referee that will preside at your Hearing issue a subpoena to any witnesses or document that you believe would help your case. We have found, more often than not, these requests are rejected (thus providing a possible avenue of appeal). In any event, subpoenas to your former co-workers are typically not going to be helpful - your former co-worker is still employed, and is likely to be hesitant when asked to provide testimony that is against their employer's interest.
Quick Answer: No. If you are retired, you have taken yourself out of the workplace and cannot receive unemployment benefits in Pennsylvania. Unemployment only pays benefits to those persons who are out of work through no fault of their own, and who are actively seeking work. If you are forced to retire, you satisfy the first prong of the equation, but not the second. Unless there are substantial benefits to early retirement, you should just let them fire you instead of electing to take unemployment. Then, it will be up to you to advise unemployment if you are retired or actively looking for work.
Another thing to bear in mind: If you elect early retirement, you may be forfeiting your right to make a claim for age discrimination!
17) Can I Conduct "Discovery" Prior to My Pennsylvania Unemployment Hearing?
Quick Answer: Yes, on a rather limited basis.
Discovery is the process of learning about the other side's case prior to a Hearing. Typically, there is little opportunity to conduct discovery before an Unemployment Hearing. Here is what you can do: The File for your Hearing is ALWAYS delivered to the place where your Unemployment Hearing is going to be conducted at least two weeks before the Hearing is to be held. You may go to the Hearing location at any time, present your Notice of Hearing, and obtain a copy of the file for your review. They will usually make a copy of the file for you, if you ask politely!
What to look for? The Employer's Questionnaire, which will include answers provided by your former employer to the Service Center that will detail your employer's position on your case. The file may also include documents that your former employer submitted to the Service Center to "prove" its case.
You may ask to have the Referee that will preside at your Hearing issue a subpoena to any witnesses or document that you believe would help your case. We have found, more often than not, these requests are rejected (thus providing a possible avenue of appeal). In any event, subpoenas to your former co-workers are typically not going to be helpful - your former co-worker is still employed, and is likely to be hesitant when asked to provide testimony that is against their employer's interest.
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| Tele-Hearings - Potentially Very Tricky |
Quick Answer: Submit all documents that you want introduced at the Hearing to the Referee within 5 days of the Hearing. Otherwise, you will not be allowed to introduce or even discuss those documents at the Hearing. This is true even where your former employer is appearing telephonically, and you in person (or vice versa).
Problem: Often, employees do not receive a Notice of Hearing until 7-10 days before the Hearing. This leaves scant time to figure out what documents you want introduced, and then to collect them and get them to the Referee.
Solution: If you have gotten barely enough notice, and cannot get the documents to the Referee in time, ask for a continuance so that you may have an opportunity to do so. It really stinks to be hamstrung at a case when you have critical documents in your possession that you cannot introduce because you did not act "quickly enough."
You May Want to Read:
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| If You Were Truly Self-Employed - It is Nearly Impossible to Get Benefits |
19) I Ran My Own Business for 5 Years and it Failed Despite My Best Efforts - Can I Collect Unemployment in Pennsylvania?
Quick Answer: No (with some extremely rare exceptions). We are not entirely clear on why this is the law. However, it is the law, and there is generally no way around it. If you are either a business owner of, or a controlling principal in, a business that fails, you may not collect Unemployment Benefits Pennsylvania. However, there are situations wherein the mere ownership of a business is not disqualifying if, for example, you owned the business during the entire time that you were employed by a company that terminated your employment, which termination prompted your application for benefits. Click Here to read more about that.
Quick Answer: No (with some extremely rare exceptions). We are not entirely clear on why this is the law. However, it is the law, and there is generally no way around it. If you are either a business owner of, or a controlling principal in, a business that fails, you may not collect Unemployment Benefits Pennsylvania. However, there are situations wherein the mere ownership of a business is not disqualifying if, for example, you owned the business during the entire time that you were employed by a company that terminated your employment, which termination prompted your application for benefits. Click Here to read more about that.
Were you TRULY an Independent Contractor Under the Law???
20) I Worked as an Independent Contractor for Years and Now I Have Been Let Go - May I Collect Pennsylvania Unemployment Benefits?
Quick Answer: No. If you were truly an independent contractor and you lose your employment for any reason (contract expires or is terminated, etc.), you are treated as a business owner (See #19, above) and are ineligible for Unemployment Compensation Benefits in PA. However, in my experience, a significant percentage of people that are deemed Independent Contractors are not truly Independent Contractors. See #2-4, above. If you prove to an Unemployment Referee that your were not in fact an independent contractor, then you will be entitled to benefits.
You May Want to Read:
Independent Contractor Rule Under
Pennsylvania Unemployment Law - 1099s, w-2s and Worker Rights
21) What Happens if My Ex-Employer Does Not Show Up for My Pennsylvania Willful Misconduct Unemployment Hearing?
Quick Answer: In most cases, you will win.
If the issue is whether you are guilty of willful misconduct, the burden is on the employer to prove that you engaged in behavior that qualifies as willful misconduct. If the employer does not show up, then you should win the case.
NOTE: In such circumstances, it is important that you object to any hearsay statements contained within the unemployment file that may be used against you. Otherwise, it is possible that those statements may be used against you.
NOTE: When an employer fails to appear for a willful misconduct hearing, MOST Referees will just ask you a few questions, such as: "Did you work to the best of your ability," "Did you violate any work rules," etc. As long as you have objected to any hearsay statements within the file, you will win the case provided that you answer "Yes," and "No." Most Referees will then end the Hearing, and you win. For such Referees, the less you say the better. resist the urge to tell the "whole story," or to convince the Referee of how unfair your termination was, etc. This will only get you in trouble.
For Referees that seek to grill you even though the employer has not appeared (and there are a few), you should be OK as long as you objected to all of the hearsay in the file, and keep your words and explanations to a minimum.
21) What Happens if My Ex-Employer Does Not Show Up for My Pennsylvania Willful Misconduct Unemployment Hearing?
Quick Answer: In most cases, you will win.
If the issue is whether you are guilty of willful misconduct, the burden is on the employer to prove that you engaged in behavior that qualifies as willful misconduct. If the employer does not show up, then you should win the case.
NOTE: In such circumstances, it is important that you object to any hearsay statements contained within the unemployment file that may be used against you. Otherwise, it is possible that those statements may be used against you.
NOTE: When an employer fails to appear for a willful misconduct hearing, MOST Referees will just ask you a few questions, such as: "Did you work to the best of your ability," "Did you violate any work rules," etc. As long as you have objected to any hearsay statements within the file, you will win the case provided that you answer "Yes," and "No." Most Referees will then end the Hearing, and you win. For such Referees, the less you say the better. resist the urge to tell the "whole story," or to convince the Referee of how unfair your termination was, etc. This will only get you in trouble.
For Referees that seek to grill you even though the employer has not appeared (and there are a few), you should be OK as long as you objected to all of the hearsay in the file, and keep your words and explanations to a minimum.
If you Quit, You Bear the Burden of Proof
22) What Happens If My Former Employer Does Not Appear for My Pennsylvania Voluntary Quit Unemployment Hearing?
Quick Answer: It does not make things all that much easier.
If you voluntarily quit your employment (or are accused of doing so!), then the burden is on you to prove (if you did indeed quit) that you had a necessitous and compelling reason to do so. Unemployment Referees have heard hundreds of quit cases, and they know the law and what to look for. So you will have to present solid testimony that comports with the standards for voluntary quit cases under Pennsylvania law.
23) My Ex-Employer Says I Quit, But I Was Actually Fired - What Happens at My Pennsylvania Unemployment Hearing?
Quick Answer: Prove first that you were indeed fired, and then the burden will shift to your former employer to prove that you were fired for willful misconduct.
This happens a lot. Employee is told, "We're firing you, or you can quit - why not quit to protect your record?" Employee then says, "OK, I quit." Employee then applies for benefits, and says "I was fired." Employer then tells Service Center, "No, she quit." Service Center issues Notice of Determination, and one side or the other appeals. At the Unemployment Hearing, the first thing you want to tell the Unemployment Referee is that this is not a "voluntary quit" case. The Referee will then delve into what happened, inquiring about what happened during that final, fateful meeting. The Referee will then examine the employer to find out why the employee was going to be fired. If the employer proves it was because of willful misconduct, employer wins. If not, you win.
Quick Answer: It does not make things all that much easier.
If you voluntarily quit your employment (or are accused of doing so!), then the burden is on you to prove (if you did indeed quit) that you had a necessitous and compelling reason to do so. Unemployment Referees have heard hundreds of quit cases, and they know the law and what to look for. So you will have to present solid testimony that comports with the standards for voluntary quit cases under Pennsylvania law.
23) My Ex-Employer Says I Quit, But I Was Actually Fired - What Happens at My Pennsylvania Unemployment Hearing?
Quick Answer: Prove first that you were indeed fired, and then the burden will shift to your former employer to prove that you were fired for willful misconduct.
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| Let Them Fire You |
UC Transcript May Be
WORTH ITS WEIGHT IN GOLD
in Subsequent Lawsuit!
24) Can I Use the Testimony From My Unemployment Hearing in a Lawsuit?
Quick Answer: Oh, yes. At Unemployment Hearings, testimony is taken under oath, and is centered upon the reasons for the end of your employment. If you believe that your employment ended for an illegal reason, such as unlawful discrimination, wrongful termination or violation of the Family and Medical Leave Act, etc., then the testimony you obtain at the Unemployment Hearing may be very valuable in a later lawsuit filed against your employer.
NOTE: Many employers do not obtain counsel to represent them at Unemployment Hearings, figuring that they have been through it before and know what to do. Hence, their testimony at an Unemployment Hearing about why you were fired is often "unrehearsed." Not so in a lawsuit. There, you can be sure that the company's lawyer will have "prepared" the witness prior to their testimony. The wonderful thing is, all the preparation in the World cannot undue their prior testimony before the Unemployment Referee!
Quick Answer: Oh, yes. At Unemployment Hearings, testimony is taken under oath, and is centered upon the reasons for the end of your employment. If you believe that your employment ended for an illegal reason, such as unlawful discrimination, wrongful termination or violation of the Family and Medical Leave Act, etc., then the testimony you obtain at the Unemployment Hearing may be very valuable in a later lawsuit filed against your employer.
NOTE: Many employers do not obtain counsel to represent them at Unemployment Hearings, figuring that they have been through it before and know what to do. Hence, their testimony at an Unemployment Hearing about why you were fired is often "unrehearsed." Not so in a lawsuit. There, you can be sure that the company's lawyer will have "prepared" the witness prior to their testimony. The wonderful thing is, all the preparation in the World cannot undue their prior testimony before the Unemployment Referee!
The Hearing is NOT the Place to Confess Your Work-Related Sins!
On the other hand, if you "stick your foot in your mouth" at the Hearing, as many have unknowingly done, then the Transcript will hurt you in any later lawsuit....
If you think you have been fired for an illegal reason, we would suggest that it is essential that you have an attorney represent you at your Unemployment Hearing.
25) For How Long May I Receive Unemployment Benefits in Pennsylvania?
Quick Answer: Pennsylvania state minimum is 26 weeks. From time to time, it may be extended by the Commonwealth, or even supplemented/extended by the federal government.
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| You Can Get UC Benefits - But Only If You Satisfy the Legal Standard |
Quick Answer: Yes, but only if you had a necessitous and compelling reason to quit, and first attempted to resolve the situation with your employer. The requirements under Section 402(b) of the Pennsylvania Unemployment Law are difficult to meet; that is why we typically advise clients not to quit their jobs if they want to have the very best chance of getting unemployment benefits.
However, if you are truly being subjected to an ILLEGAL hostile work environment (many people confuse lawful "hostile work environments" with illegal "hostile work environments") or are being required to do something illegal, you have a reasonably good chance of getting benefits if you first brought the issue to the attention of management and it did not adequately address the situation. Best to call a lawyer to get some guidance if you are thinking about quitting your job under such circumstances. You may have a claim for discrimination or wrongful discharge, and you want to make sure that claim is "perfected" before you tender your resignation.
You May Want to Read: What
is a Necessitous and Compelling Reason for Quitting my Job Under Pennsylvania
Unemployment Law? Philadelphia Unemployment Lawyers Explain
You Only Have ONE Opportunity to Present Testimony/Evidence
and to Exclude Evidence and Cross-Examine Witnesses
27) What Are My Chances of Winning an Appeal Before the Pennsylvania Unemployment Compensation Board of Review?
Quick Answer: Generally speaking, pretty slim. Only appeals that are centered on legal theories (as opposed to credibility determinations, etc.) have much chance of winning. You DO NOT get another hearing if you appeal to the Board - it will only consider the evidence presented at the initial Referee hearing. Click Here to read more about the UCBOR.
Quick Answer: Generally speaking, pretty slim. Only appeals that are centered on legal theories (as opposed to credibility determinations, etc.) have much chance of winning. You DO NOT get another hearing if you appeal to the Board - it will only consider the evidence presented at the initial Referee hearing. Click Here to read more about the UCBOR.
If Severance is More Than $20,000, Your Benefits Will be Affected
28) May I Collect Unemployment Benefits in Pennsylvania if I am Getting a Severance?
Quick Answer: There are limitations on this right. You May Want to Read:
Quick Answer: There are limitations on this right. You May Want to Read:
Severance
and Pennsylvania Unemployment - Doing the Math
29) My employer is terminating my job, but offering me another position. Do I have to take it?
Quick Answer: This is known as a "suitable work" case. If the job being offered is "suitable" (i.e. relatively similar in terms of location, hours, pay, etc.) to your former job, you will have to take that job or be denied unemployment benefits.
This issue comes up most frequently in a) situations where a designated position is being eliminated; and/or, b) situations where an assignment secured through a temporary job placement agency has come to an end, and the agency is offering a new job. In another Blog post, we spoke about how such job "offers" are often "bogus," and in fact are intended not to put you in a new job, but rather to give the employer a basis for seeking denial of your right to unemployment.
30) What are the Rules for Pennsylvania Unemployment Hearings Conducted by Telephone?
Quick Answer: Effective June 16, 2011, all claimant's and employers have a right to appear at Unemployment Hearings via telephone. There are special rules for telephone hearings about which you should be aware. The most critical rule is that all documentary evidence that one wishes to have considered at the Hearing MUST be provided to the Unemployment Referee no more than 5 days before the Hearing. If you fail to do that, the evidence will not be considered, no matter how critical it may be.
The rule regarding documentary evidence applies whether you are appearing at the Hearing or not. In other words, if your employer is appearing by telephone and you are appearing in person, you still must submit your evidence 5 days prior to the Hearing.
29) My employer is terminating my job, but offering me another position. Do I have to take it?
Quick Answer: This is known as a "suitable work" case. If the job being offered is "suitable" (i.e. relatively similar in terms of location, hours, pay, etc.) to your former job, you will have to take that job or be denied unemployment benefits.
This issue comes up most frequently in a) situations where a designated position is being eliminated; and/or, b) situations where an assignment secured through a temporary job placement agency has come to an end, and the agency is offering a new job. In another Blog post, we spoke about how such job "offers" are often "bogus," and in fact are intended not to put you in a new job, but rather to give the employer a basis for seeking denial of your right to unemployment.
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| Lots of Rules - Be Careful |
30) What are the Rules for Pennsylvania Unemployment Hearings Conducted by Telephone?
Quick Answer: Effective June 16, 2011, all claimant's and employers have a right to appear at Unemployment Hearings via telephone. There are special rules for telephone hearings about which you should be aware. The most critical rule is that all documentary evidence that one wishes to have considered at the Hearing MUST be provided to the Unemployment Referee no more than 5 days before the Hearing. If you fail to do that, the evidence will not be considered, no matter how critical it may be.
The rule regarding documentary evidence applies whether you are appearing at the Hearing or not. In other words, if your employer is appearing by telephone and you are appearing in person, you still must submit your evidence 5 days prior to the Hearing.
You May Want to Read:
Unemployment
Appeal Hearings by Telephone in Pennsylvania - The New Norm - And Why You Want
to Consider Hiring Legal Counsel
31) Can I Get PA Unemployment Benefits if I Accept a Voluntary Early Retirement?
If the termination from your employment was imminent, and you agreed to accept early retirement in lieu of such termination, then yes. And, you may be a victim of age discrimination as well...
If, on the other hand, you would have remained employed had you not accepted the voluntary retirement option, then no on the grounds that you voluntarily quit your job without "necessitous and compelling reason." This is true even if your employer told you that it "won't contest unemployment."
Have questions about any facet of employment law in the United States? Chances are, we have addressed them; Click Here to read our comprehensive answers to FAQs on employment law in Pennsylvania, and throughout the USA.
31) Can I Get PA Unemployment Benefits if I Accept a Voluntary Early Retirement?
If the termination from your employment was imminent, and you agreed to accept early retirement in lieu of such termination, then yes. And, you may be a victim of age discrimination as well...
If, on the other hand, you would have remained employed had you not accepted the voluntary retirement option, then no on the grounds that you voluntarily quit your job without "necessitous and compelling reason." This is true even if your employer told you that it "won't contest unemployment."
Have questions about any facet of employment law in the United States? Chances are, we have addressed them; Click Here to read our comprehensive answers to FAQs on employment law in Pennsylvania, and throughout the USA.
Settlement May Be Deductible IF it is Characterized as Severance
32) How Does a Settlement Payment Effect My Right to PA Unemployment Benefits?
Quick Answer: A voluntary settlement from your former employer will not effect your right to PA unemployment, unless (perhaps) if its is (incorrectly) labelled as a severance payment.
The plain language of the unemployment law indicates that a settlement should not affect your entitlement to unemployment. The law as written says that payments made to former employees as a result of a claim for discrimination, etc., reduce your entitlement to benefits only if the payment is made "pursuant to an award of a labor relations board arbitrator or the like."
Note: Many employers are now trying to (improperly) characterize settlement payments as severance payments to avoid being charged for your unemployment compensation. Click Here to learn more.
33) What is my "Base Year" Under PA Unemployment Law?
Quick Answer: Your Base Year is the first 4 of the last 5 quarters that immediately preceded the date of your separation from your most recent employment.
Example: You worked for Company X during 2011 at an annual salary of $55,000, and then lost your job effective January 1, 2012, You got a job at Company Y on January 1, 2012 and lost that job on April 1, 2012. In this scenario, your most recent job ended April 1, 2012 so, in calculating your Base Year earnings, one skips your most recent quarter of earnings (i.e. do not take into account any of your earnings from Company Y, all of which were made during the first quarter of 2012). Thus your Base Year earnings would be $50,000 - i.e. the amount you made during the four quarters that comprised 2011, suring which time you were employed by Company X.
Note: Company X can fight your claim by filing for Relief From Charges. Click Here to learn more.
34) What is my Ex-Employer Filing a Request for "Relief From Charges"
Quick Answer: Because it believes that it should not be "charged" for your benefits. This most commonly occurs under the following scenario:
After employing you for several years at a salary of $50,000 per year, Company X fires you for willful misconduct on January 1, 2012 (or, you quit your job in January 1, 2012). You do not seek benefits relating to your unemployment because you immediately get a job with Companyt Y, which pays you $600 per week until laying you off on April 1, 2012. You then apply for benefits. Since the only employer that paid you Base Year wages is Company X, it alone would be charged for any benefits you receive as a result of your lay off from Company Y. Since Company X believes you are not entitled to benefits arising from a loss of your job with it (because you engaged in willful misconduct or quit your job), it fires a request for Relief From Charges. Click Here to learn more.
35) Can They Deny my Unemployment Claim After I am Laid Off from My New Job Because My Old Job Says I Quit or Was Fired for Willful Misconduct?
Quick Answers (2 possibilities):
Yes: if you worked at the new job for less than 13 weeks, or did not earn 6x your weekly benefits rate from your new job AND your old job can prove you engaged in willful misconduct or quit your old job without necessitous and compelling reason, they can deny you benefits.
No: if you worked at your new job for more than 13 weeks and earned 6x your weekly benefit rate from your new job OR if you worked less than 13 weeks at new job but can prove that you did not engage in willful misconduct at your old job or that, if you quit, you had a necessitous and compelling reason for doing so.
Click Here for more on these seemingly complicated scenarios.
36) I Quit my Old Job Because I Got a New Job - But Now My New Job Gave me a Lay-Off - Can I Get Unemployment in Pennsylvania?
Quick Answer: Yes. If you had the job offer from the new job in hand when you quit your old job, you can.
The plain language of the unemployment law indicates that a settlement should not affect your entitlement to unemployment. The law as written says that payments made to former employees as a result of a claim for discrimination, etc., reduce your entitlement to benefits only if the payment is made "pursuant to an award of a labor relations board arbitrator or the like."
Note: Many employers are now trying to (improperly) characterize settlement payments as severance payments to avoid being charged for your unemployment compensation. Click Here to learn more.
33) What is my "Base Year" Under PA Unemployment Law?
Quick Answer: Your Base Year is the first 4 of the last 5 quarters that immediately preceded the date of your separation from your most recent employment.
Example: You worked for Company X during 2011 at an annual salary of $55,000, and then lost your job effective January 1, 2012, You got a job at Company Y on January 1, 2012 and lost that job on April 1, 2012. In this scenario, your most recent job ended April 1, 2012 so, in calculating your Base Year earnings, one skips your most recent quarter of earnings (i.e. do not take into account any of your earnings from Company Y, all of which were made during the first quarter of 2012). Thus your Base Year earnings would be $50,000 - i.e. the amount you made during the four quarters that comprised 2011, suring which time you were employed by Company X.
Note: Company X can fight your claim by filing for Relief From Charges. Click Here to learn more.
34) What is my Ex-Employer Filing a Request for "Relief From Charges"
Quick Answer: Because it believes that it should not be "charged" for your benefits. This most commonly occurs under the following scenario:
After employing you for several years at a salary of $50,000 per year, Company X fires you for willful misconduct on January 1, 2012 (or, you quit your job in January 1, 2012). You do not seek benefits relating to your unemployment because you immediately get a job with Companyt Y, which pays you $600 per week until laying you off on April 1, 2012. You then apply for benefits. Since the only employer that paid you Base Year wages is Company X, it alone would be charged for any benefits you receive as a result of your lay off from Company Y. Since Company X believes you are not entitled to benefits arising from a loss of your job with it (because you engaged in willful misconduct or quit your job), it fires a request for Relief From Charges. Click Here to learn more.
35) Can They Deny my Unemployment Claim After I am Laid Off from My New Job Because My Old Job Says I Quit or Was Fired for Willful Misconduct?
Quick Answers (2 possibilities):
Yes: if you worked at the new job for less than 13 weeks, or did not earn 6x your weekly benefits rate from your new job AND your old job can prove you engaged in willful misconduct or quit your old job without necessitous and compelling reason, they can deny you benefits.
No: if you worked at your new job for more than 13 weeks and earned 6x your weekly benefit rate from your new job OR if you worked less than 13 weeks at new job but can prove that you did not engage in willful misconduct at your old job or that, if you quit, you had a necessitous and compelling reason for doing so.
Click Here for more on these seemingly complicated scenarios.
36) I Quit my Old Job Because I Got a New Job - But Now My New Job Gave me a Lay-Off - Can I Get Unemployment in Pennsylvania?
Quick Answer: Yes. If you had the job offer from the new job in hand when you quit your old job, you can.
If You Have Another Job Offer in Hand...
However, your old job may fight your claim by filing for Relief From Charges if it is chargeable in whole or in part for your benefits as a Base Year employer (it will lose if you had the job offer in hand when you quit, though, because quitting to take a new job is a necessitous and compelling reason to quit a job under PA unemployment law).
The Issue is Not What Happened Last Year but, Rather,
On Your Last Date of Employment
37) Are My Performance Appraisals or Performance Evaluations Relevant at a Pennsylvania Unemployment Hearing?
Rarely. If you have been fired for willful misconduct, the case typically revolves around what you did on the date in question that caused you to be fired. If you were fired due to stealing money from the company on February 1, the fact that the Pope had the month before anointed you as the finest worker in the World will have little relevance. If you stole money, that is willful misconduct, no matter how good of an employee you had been. Click Here for more on this issue.
38) Who Bears the Burden of Proof in a Pennsylvania Unemployment Hearing?
Click Here for our comprehensive evaluation of the Burden of Proof issue.
39) Can I Get Unemployment if I am Out on Disability Leave?
In many cases, the answer is YES. Click Here to learn more.
We handle:
Chester County Unemployment Appeal Hearings (in King of Prussia)
Montgomery County Unemployment Appeal Hearings (in King of Prussia)
Delaware County Unemployment Appeal Hearings (in Springfield)
Philadelphia County Unemployment Hearings (on North Third Street)
Bucks County Unemployment Hearings (in Bristol)
Lancaster County Unemployment Appeal Hearings (in Lancaster)
Berks County Unemployment Appeal Hearings (in Reading)
Rarely. If you have been fired for willful misconduct, the case typically revolves around what you did on the date in question that caused you to be fired. If you were fired due to stealing money from the company on February 1, the fact that the Pope had the month before anointed you as the finest worker in the World will have little relevance. If you stole money, that is willful misconduct, no matter how good of an employee you had been. Click Here for more on this issue.
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| Who Must Carry the Water? |
38) Who Bears the Burden of Proof in a Pennsylvania Unemployment Hearing?
This is a VERY important issue to understand. If it is a willful misconduct case, the employer has the burden of proof. If it is a quit case, the employee has the burden of proof. If it is an independent contractor case, the employer has the burden of proving that you were an independent contractor.
Click Here for our comprehensive evaluation of the Burden of Proof issue.
39) Can I Get Unemployment if I am Out on Disability Leave?
In many cases, the answer is YES. Click Here to learn more.
We Hear You, Fam
HERE
ARE SOME OTHER LINKS YOU MAY FIND WORTHWHILE:
Should I Hire a Lawyer for
My Unemployment Appeal Hearing in Pennsylvania?
Why Hire An Attorney for My
Pennsylvania Unemployment Hearing?
What Happens at an
Unemployment Appeal Hearing in Pennsylvania?
Philadelphia Area Lawyer's
Quick Answers to the Most Common Pennsylvania Unemployment Questions
Don't Quit That Job
Pennsylvania Employees if You Want to Get Unemployment Compensation Benefits!
Pennsylvania Service Center
for Unemployment Claims - Who Are These People, Anyway?
Pennsylvania Unemployment
Lawyer - Willful Misconduct Referee Hearings
Seven Things to Know About
The Pennsylvania Unemployment Compensation Board of Review
I Want to Quit My Job and
Get Unemployment Benefits in Pennsylvania
Pennsylvania Unemployment
Determination of Financial Eligibility - PENNSYLVANIA UNEMPLOYMENT LAWYERS
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We are employment lawyers who represents employees in Pennsylvania.
We typically represent employees who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.
Pennsylvania Employment Attorneys Provides Free Telephone Consultations
If you are looking for an employment lawyer, and live in
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surrounding towns, feel free to send us an e-mail via our Contact Form or give us a call at 610-647-5027.
We are always glad to spend some time with people via a free
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Thanks for checking in with us.
We handle:
Chester County Unemployment Appeal Hearings (in King of Prussia)
Montgomery County Unemployment Appeal Hearings (in King of Prussia)
Delaware County Unemployment Appeal Hearings (in Springfield)
Philadelphia County Unemployment Hearings (on North Third Street)
Bucks County Unemployment Hearings (in Bristol)
Lancaster County Unemployment Appeal Hearings (in Lancaster)
Berks County Unemployment Appeal Hearings (in Reading)