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Monday, June 6, 2011

Seven Things to Know About The Pennsylvania Unemployment Compensation Board of Review



I LOST MY PENNSYLVANIA UNEMPLOYMENT HEARING, WHAT CAN I DO NOW?

We receive many calls from folks that have lost their Unemployment Hearing before an Unemployment Referee, who would like to appeal that decision to the Pennsylvania Unemployment Board of Review ("UCBOR").  Here are 7 things to understand about appeals to the UCBOR:

UCBOR Decides All PA UC Appeals
WHAT  IS THE PA UNEMPLOYMENT COMPENSATION BOARD OF REVIEW?

The UCBOR is made up of 3 people:

Richard W. Bloomingdale – Chairperson
 
Eileen B. Melvin – Member
 
Larry Dunn - Member
 
Click Here for profiles of UCBOR members.

These 3 people consider every single appeal filed by anyone
contesting a decision made by a Referee following an Unemployment Hearing.  There are many such appeals, and many, but not all, are rejected with limited discussion.

HOW DOES THE PA UNEMPLOYMENT COMPENSATION BOARD OF REVIEW DECIDE CASES?

Every Unemployment Hearing is recorded.  Once an appeal is filed, a transcript of the proceedings is produced.  The UCBOR's staff reviews the transcript, and all exhibits that were introduced at the Hearing.  Both parties have a right to file a Brief explaining why they believe the Referee's decision is incorrect/correct.  Any such Briefs will be considered as well.

The UCBOR has reviewed thousands of appeals, and recognize nearly every fact pattern and legal issue presented.  Referees are similarly knowledgeable about fact patterns and the law; that is why a  relatively low percentage (say less than 20%) of Referee decisions are overturned. 

If you did not have an attorney representing you at the Hearing, the percentages are lower.  Why?  Because the Board in most cases bases its decisions on legal issues that were raised before the Referee at the Hearing.  So?  Most reversals are due to legal mistakes involving evidentiary issues, (as opposed to reversing credibility determinations made by the Referee), and attorneys best understand how to raise and preserve legal issues for an appeal.

WHAT CAN THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW DO WITH AN APPEAL?

Typically, it can 1) affirm the Referee's decision (usually); 2) reverse the Referee's decision (infrequently, but sometimes); or, 3) send the case back to the Referee to obtain evidence or to hold a new Hearing; this is called a Remand (infrequently).

DOES THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW CONSIDER NEW EVIDENCE ON AN APPEAL? 

Almost never.  The parties on appeal are "stuck" with whatever testimony, evidence and arguments that were presented at the initial Hearing before the Referee.

The only exception to this rule I have seen?  Where an employee, after the Hearing, discovers evidence that he or she could not possibly have discovered prior to the Hearing that proves that the employer perjured itself at the Hearing.  Don't count on this happening in your case -- it is very rare.

DOES THE PENNSYLVANIA UNEMPLOYMENT COMPENSATION BOARD OF REVIEW HOLD HEARINGS?

Never.  All Pennsylvania Unemployment Hearings are held by Referees.  The UCBOR rarely if ever considers new evidence on an appeal, and never conducts its own Hearing.

WHAT DO I DO IF THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW DENIES MY APPEAL?

You may appeal to the Pennsylvania Commonwealth Court.  Unless you have been represented by counsel throughout your unemployment claims process, the likelihood of finding an attorney who will handle such an appeal for you is very low - any any such attorney will likely seek a substantial fee.  Why?  Because, at this stage, any reversals are going to be based only on legal issues that were raised at the Hearing (and argued before the UCBOR), and attorneys are best suited to raise and preserve such arguments.

WHAT TYPES OF CASES ARE GOOD TO APPEAL TO THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW IN PA?

Typically, cases that were incorrectly decided via a misapplication of the law.  In such cases, filing a legal brief can be very helpful.  Such examples often relate to evidentiary matters such as Hearsay, or misapplication of legal precedent.

Trying to prove that the Referee misunderstood facts, that he/she was wrong in making credibility determinations or that the Referee unfairly favored one side of the other are usually rejected by the UCBOR.

Click Here for discussion on how to file Appeal with UCBOR.

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

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.

10 comments:

Kenneth Zeigler said...

My comment is that I was an employee for a major manufacturer in the York, Pa, area for 10 months through a staffing agency. I have been fighting my U.C. denial by myself since mid-March of this year. All I did was worked overtime on a normally unscheduled day, a Friday, that just happened to fall on the day I was supposed to call and get my hours for the following week. I was so busy at work that day that it completely slipped my mind. So, without hours I could not go to work Monday morning. I called the staffing agency early Monday morning and was told the manufacturer terminated my position because I forgot to get hours. U.C. denied my claim under 402b. The staffing agency said I quit. I appealed and went to a hearing. The referee held the hearing so fast that it made your head spin, and of course, sided with the employer & U.C.< he works for them. So I appealed to the Board of Review, and finally got the letter today that they reversed the referee decision. My issue is that it took this long for someone to look at this case who had some common sense. The facts were clear, and yet the person who originally denied my claim at U.C. and the supposed referee who has heard many,many cases apparently couldn't read the facts and get it right. I am a regular guy with a GED, and I could see it should not have been denied. I wonder how many other countless people out there have been wronged by unscrupulous employers and this imperfect U.C. system. Had I just given up after the 1st denial, I would have been just another victim. Thank you for your time. Kenneth Zeigler

Anonymous said...

I am going through something very similar to you. There are 3 owners of the company i was working for , one of them went away on vacation and the other owner that was at the business told me not to return to work until she called me to work out more details but she never called. A month later i decided to file for unemployment because I have a child to care for. My claim was denied because they said i abandoned my job, saying that i should have went into business even know one of the owners told me not to return until she called. I am confused by whole matter, then I go for hearing in front of referee and that was pointless because they didn't want to hear a word that i was saying or care about any objections about case, my objections were that the owner that was on vacation at the time is only one who showed up at hearing and I objected saying anything he would say would be hearsay because the owner I had worked out details with was not present. But they sided with employer and allowed the testimony then denied my claim. Filed appeal to board 2 weeks ago and still haven't heard anything but this is going to take at least 75 days! At this point they owe me for 22 weeks and about to lose my home but all they say is there is no time limit for them to respond to my appeal to just deal with it! What kind of state is this, with the economy that were in that they don't even try to assist you. I can't even get any kind of public assistance because unemployment case pending. They sure do like to take there unemployment out of our checks weekly but when we apply for it they deny.

Anonymous said...

Hello to both of you that have commented. I represented myself when I got fired from my job back in June of 2010. I have had a hearing, been denied UC benefits, appealed it to the board of review, they denied it, I appealed it again to the Commonwealth Court and they decided that I could have a REMAND HEARING. That remand hearing was August of 2011 and it is now Dec 2011 and I have yet for an answer. My lawyer that represented me at my remand hearing did a wonderful job and the owners of the company that fired me changed their story completley the second go around and even brought proof that backfired in their face because the proof they brought were of documents and pictures of things that happened AFTER I was fired.
Keep your hopes up both of you and let me know how your outcome was...abomb2@comcast.net

Anonymous said...

I have a Similar situation also. I was fired from my Job at a Hospital. I'm a Nurse, and I worked casual. The eliminated the entire program that I used to be employed in the "perdiem program" (all 149 RN's between 3 hospitals lost those jobs and were forced to pick new jobs) Because of my home situation and many young children- I needed to schedule my work hours of availablility around my husbands Full time job. So casual level employment was the only choice my employer had to offer that allowed me to schedule. They started making schedule chages with ZERO notice to me- scheduling hours that I could not commit too. And with very little notice to make child care arrangements.(they fully were aware I believe) So they REMOVED me off the schedule completely- I ASSUMED I was let go- filed a claim. They said without confirmation it must be filed as a "voluntary quit" (but I was sure I was let go) After many attempts to reason and reach confirmation by the employer..I was finally given an answer when I asked if I was "laid off?" and the supervisor said "yes"... I immediately called back to unemployment who said "it can't be changed" I needed to wait for the determination. I waited and my benefits denied. I then secured a lawyer. We had a hearing-in front of the referee- (very biased in favor of the hospital) allowed a continuation for them- then ruled IN FAVOR for them---that I "quit my job" ....just walked away after over a decade. So now the findings of fact have errors in the denial letter. Lots of mistakes. It is a joke really. I suppose I will need to appeal for the board of review. Which I don't hear people do well appealing the referee decision. This referee was openly slanted in favor of the employee. From the time we walked in the door. It's disheartening, and very frustrating this can happen.

employment lawyers Chicago said...

There are so many things written and told about employment compensation but still most of us don't get the proper compensation. The main reason behind it that a person who is seeking for compensation make some mistake, even in normal scenario we cant say it a mistake. But when legal things are on these are counted as mistake. SO if any one is willing for employment compensation he must check his all work done and should contact a lawyer who can understand all the aspect and can help you.

Employment Lawyers said...

ChiTown employment lawyers:

Thanks for checking in. Well said. I win many cases based upon evidentiary issues that he average person seeking unemployment would have no idea about since they are not attorneys and the rules of evidence are complex.

Anonymous said...

I agree with both comments in the referee did not want to here what
i had to say I was notified by the
referees office the date and time
of my hearing i had so much trouble
getting the office to recieve my
request for an appeal i mailed them
the form and call to make sure they
recieved it. when they had not they
said i could email it so i did i called later and they said they had not so lastly i faxed it but they siad it was one day late and
that was the ref reason for denying
me. she did not allow me to speak on the reason i thought the hearing was about i brought her a copy of the email after the hearing was over but she denied me based on a late appeal when cleaarly the email was evidence of
my filing in the time allow now the review board says they have 75
days to make there decision im going under and it was ther office
fault the email clearly evidence of that

Anonymous said...

Hi everyone, I am in the middle of fighting for my unemployment. I have been at my former job for 5 years. I have been promoted twice. I have never ever been late, or absent. I have all kinds of awards, certificates, classes I took. I absolutley loved my job. My employer was my sister in law. And she would scream, holler, she was just very arrogant. While she did it to most of her department heads,I got most of it. I have watched her assistants come and go. And I thought it was because of the yelling, it was not. I found what it was about. On 2/1/12 I noticed a new nurse, being director of Human resource, i had not been given any paperwork. We operated under the guidelines of the state of Pennsylvania, being it was an assisted living facility, there were many requirement that I needed to make sure the nurse could work. On 2/6/12 I was called into the office with the boss and director of nursing. And basically they had asked me to hide the girls paperwork, she had not worked for 15 years, so all of her certifications expired. I was appalled that they asked me to do that. I just replied how can we trust someone to give our residents medication, and they are not legal. The state would have shut us down. So from that day, until Wed 2/8 I was so harrassed, made to feel very uncomfortable, and was yelled and screamed. She called me stupid in front of lots of people. But i let it go, like I always do. but on Thurs, 2/9/12, I was at my desk doing payroll, she called me to the conference, and said to me "I dont even want to look at you today, and slammed the door in my face. I was mortified. I began crying, and I didnt want to put more fuel on the fire, so I stepped out to cool off. And when I tried to return, security would not let me in the building saying I was fired. The next day Friday, I drove up there, when I got to the parking lot, I called, her son answer, didn;t even give me a chance to say anything. He said, oh I packed up your personal belongings, I will meet you in the driveway. So I filed unemployment, which I was denied. So I appealed it. On March 28, 2012 was my hearing. My former employer brought 3 co workers with her, I had my husband and my attorney. Two of the people she had with her, were not even there that day. So the referee said they can leave. Anyway, it was horrible. I didnt want to say anything about the state and the paperwork, becuase I did not want the place to get shut down. Well they sided with her, and I was denied again, the letter came April 2, 2012. Right away we appealed again, to the Board of Review. I have received a letter stating they got it, but that is all. I have been out of work since February 9, 2012, and it is a hardship. I am married, but my husband is serverly disabled. He has a pension, but it is not enough. I so am waiting for the, so that maybe I will have some good news. I am so broken hearted that I cannot even see my residents.

Anonymous said...

Employer never paid into unemployment. He was showing on pay stub that it was being payed but not actually paying it. His business is shut down and he is being charged with tax evasion. Pa. U.C. denied my claim. Will I win appeal and do I need an attorney? Thanks

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