Tuesday, March 1, 2016

I was Fired - What Should I Say on My Internet Application for Pennsylvania Unemployment Benefits?

How Do I Fill Out Pennsylvania's Internet Initial Application for UC Benefits When I Was Terminated From My Job?

You should file a application for Pennsylvania Unemployment Benefits as soon as possible, or risk potentially losing out on some benefits.  I believe the best (and certainly the fastest) way to apply is via PA's Dept. of Labor Portal  -  https://www.paclaims.state.pa.us/UCEN/ApplicationClosed.asp

NOTE:  Before you start the application process, you may want to Click Here and read my comprehensive Post on completing the application in a variety of situations, such as when an employee quits.  

This Post, however, is specifically tailored to address how to apply for UC Benefits when employment was involuntarily severed due to some alleged actions or inactions by the employee. Click Here to read about how to handle voluntary quit cases.  

Most Common Mistake Made on Pennsylvania Unemployment Applications - Saying You Were Laid Off or Part of a RIF When in Fact You Were Told You Were Terminated for Cause

First off, let me say that the most common mistake in unemployment applications is the mischaracterization as to why the employment relationship ended.  More specifically, the most common error is when an applicant says he/she was let go due to "lay off" or "reduction in force" (RIF) as opposed to what he/she was told at the time of the separation -- that they were being fired because of ALLEGED rule violation(s), insubordination, tardiness/absenteeism, falsification of time records, improper use of company's computers, conflict with co-worker(s), customer complaints, poor performance, etc.  

Employers Are Not Always as Direct as the Donald
I have concluded that the most common reason for these mistakes are as follows:

1)  the employer was ambiguous when explaining the reason for the separation and/or provided no meaningful reason (i.e. "we are going to part ways")

2)  the employer clearly stated the reason for the separation, but the employee does not believe the employer, and substitutes his/her belief as to the "real" reason behind the firing for what he employer said at the time of the separation.

If I Make a Mistake on My Application For Unemployment Compensation in Pennsylvania, Can I Get in Trouble?

Assessment of Financial Penalty
Add to a Host of Problems
When an applicant misstates the reason for the employment separation, he/she unwittingly starts a chain of events, each link of which is worse than the one preceding it.  Here is a paradigm that I hope explains what I mean:
  • applicants who state that the separation was due to lay off or RIF immediately begin to receive unemployment benefits;
  • the people who work for the Pennsylvania Service Center, who are claims investigators, believe that every Pennsylvania citizen is aware of this rule, and its converse --
  • on the other hand, applicants who say they were terminated must wait until their claim is investigated before possibly beginning to receive benefits;
  • when an application is filed, it is immediately sent to the employer, who is told what the applicant said was the reason for the separation, and is asked to state the employer's reason for the termination;
  • if the employer states that the applicant was fired due to some action or inaction (often referred to as "willful misconduct") or "poor performance (which is generally not considered "willful misconduct" and is therefore not a basis for denying benefits), then, I have found, the majority of Service Center Representatives brand the applicant as a "liar" who intentionally misstated the reason for the separation in order to immediately start receiving benefits;
  • in this scenario, I have found that, in the overwhelming majority of "close cases," the Service Center 1) finds that the applicant guilty of wilful misconduct and denies the claim; and, 2) charges the applicant with fraud, requires the applicant to return all benefits previously paid, and adds a substantial penalty.  This is what is referred to as an "at fault overpayment" or "fraud overpayment."   
It is Hard to Admit You Were Fired - But It Must Be Done

With regard to the two most common reasons for misstatements on applications identified above (employer ambiguity and employee disbelief), I have found that the employee disbelief of the employer's stated reason for the termination, coupled with good, old-fashioned pride, is the most prevelant cause.

"Dismissal or firing is generally thought to be the fault of the employee, whereas a layoff is generally done for business reasons (for instance a business slowdown or an economic downturn) outside the employee's performance. 

Firing carries a stigma in many cultures, and may hinder the jobseeker's chances of finding new employment..."

From Wikipedia article entitled "Termination From Employment."

My experience has taught me that Wiki is spot on here.  Where "at fault overpayments are concerned, "pride truly goeth before a fall."

If the Employer Made the Decision to End Your Employment Because of Something it Alleges That You Did Wrong, Then You Were Terminated - and You Need to Say as Much on Your Unemployment Benefit Application

It is hard to admit you were fired.  I get it, believe me, I do.  But, if you were fired, and you want to put yourself in the best position to obtain UC Benefits, it is in your best interest to:
  • republish exactly what was said to you at the time of the termination (using "quotes" is an excellent idea if possible); and/or,
  • to cite and "quote" any written document provided to you on or soon after you were terminated.
In fact, failing to "admit" you were fired can not only cause your claim to be denied, but it can also lead to a finding that you committed fraud on your application, which in turn will lead to your being assessed substantial financial penalties, which the Commonwealth will be intent on collecting.

Understanding the principles explained below, and following the the suggestions that follow. will take the guesswork out of completing the application, and will dramatically reduce (if not eliminate) any possibility that you will be accused of fraud in connection with your application.   

What is an Involuntary Separation from Employment Under Pennsylvania Unemployment Law?

In the broadest sense, an involuntary separation is one that was initiated/decided by the employer. So, in fact, unless you quit, you were involuntarily separated from your job.

NOTE:  Click Here to read "Did I Quit or Was I Fired." 

No Ambiguity Here - The Reverse Donald
Completing an Application for Pennsylvania Unemployment Benefits: Was My Separation From Employment Due to a Lay Off, a Reduction if Force or a Firing?

For purposes of this Post, which is concerned only with employer-initiated terminations of employment, there are 3 choices to select from if you were separated from employment on the employer's motion: 

1)  a "lay-off " is "[t]he temporary or permanent removal of a worker from his or her job, usually because of cutbacks in production or corporate reorganization."  Dictionary.com;

2) a "reduction in force" is "a separation from employment due to lack of funds, lack of work, redesign or elimination of position(s) or reorganization, with no likelihood or expectation that the employee will be recalled because the position itself is eliminated."  Vanderbilt;

3) a "firing" is generally deemed a termination due to ALLEGED "willful misconduct," which is a catchphrase for a wide variety of employee actions or inactions that a reasonable person would understand could or would lead to termination, the most common of which are repeated violations of a work rule after being warned, falsifying work records such as time cards, repeated absences or tardiness, insubordination (refusing a boss's directive), threatening a co-worker, being the recipient of customer complaints. etc.  Like the U.S. Supreme Court said when defining pornography, you know willful misconduct when you see it.  

My Employer Did Not Explain Why I was Being Let Go From My Job - Is That Legal?

Employers are not required to explain why an employee is being discharged. However, if the company did not provide you with any specifics as to why you were being let go, and in fact appeared evasive, you were likely terminated for cause.

Why would I say that?

Lay-offs and RIFs are almost always accompanied by a written communication provided to the employee at the time of the separation - the same is often not the case where an employee is fired for ALLEGED willful misconduct.  

Just the Facts, Ma'am - Like it or Not, Pennsylvania's Unemployment Application Requires You to State What Your Employer Told You Was the Reason You Were Being Let Go - 

When completing the application in involuntary separation situations, the applicant is required to inform the Department of Labor what he/she was told was the reason his/her employment was being severed.

Hence, it is a bad idea to do either of the following when applying for benefits:  
  • Characterizing what you were told by your employer was a firing or a termination as a “lay-off” or “reduction in force” even if you believe that is the real reason you were being let go.  If you were told you were being fired because you ALLEGEDLY did something wrong, then you must report that on the application even if you believe that what you were told was a flat out lie;
  • Spending a great deal of time presenting your "defense" to what you believe the employer will say you did wrong. Disputed claims often lead to a  a Referee Hearing.  At such Hearings, anything the applicant or employer said or submitted to the Service Center during the claims adjudication process is admissible unless excluded on grounds of hearsay, etc. So, unneccesarily "taking the lead" at this early stage of the process, at the risk of inadvertently saying something that can later come back to haunt you (such as, "Yes, I came to work drunk, but everyone does that" or "well, Sally falsified her time cards just like I did, and she wasn't fired'").
NOTE:  Two more things to bear in mind: 1) if you later hire an attorney, he/she will be grateful that you did not say anything that is inconsistent with his/her strategy for the Hearing; and, 2) evidence and testimony provided during the unemployment claim process may be admissible in a future legal proceeding between the parties for discrimination, wrongful discharge, etc.  In such situations,  your attorney will be doubly grateful that you did not say anything that could be "used against you" in that litigation!.

In conclusion, the best practice when filing an application for Pennsylvania Unemployment Benefits is to focus on providing a clear recitation as to exactly what was said to you or provided to you at the separation meeting (or soon thereafter).  In doing so, just state the facts - and avoid presenting your "defense."  Make the employer satisfy its obligation, satisfying its burden of proving you engaged in willful misconduct.  Then, down the road, you will have plenty of opportunity to disprove the validity of the ALLEGED willful misconduct asserted by the employer.

Helping Pennsylvania Workers Since 1991
Philadelphia Area Employment Attorney Representing Employees

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

John typically represents workers who need an employment lawyer in Philadelphia County, Chester County, Delaware County, Bucks County, Berks County, Lancaster County and Montgomery County.

Pennsylvania Employment Attorney Provides Free Telephone Consultations

If you are looking for an employment lawyer, and live or work in Malvern, Wayne, King of Prussia, Downingtown, Glenside, Doylestown, Radnor, Newtown Square, Exton, Philadelphia, West Chester, Skippack, Langhorne, Haverford, Nether Providence, Broomall, Drexel Hill, Reading or any of their surrounding towns, feel free to send me an e-mail or give me a call.  I am always glad to spend some time with people via a free telephone consultation.

Need an Employment Labor Lawyer Near Philadelphia?

Click Here if you have questions about any aspect of employment law, including:

·       wrongful termination
·       wage and overtime claims
·       non-compete or severance agreements
·       discrimination, wrongful discharge and retaliation laws
·       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.

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