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|
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…
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