Wednesday, May 11, 2016

Pennsylvania Unemployment Handbook for Claimant Employees - Preface to Series by Suburban Philadelphia Attorney John A. Gallagher



Pennsylvania Unemployment Compensation Lawyer - Why Are Unemployment Claims So Important? 

Perhaps the best way to express my views on this topic is to provide you with some of my background.

I started practicing law in 1991, and up until 2006 I worked for two different law firms, mostly representing Corporate America on a wide-variety of employment law related matters.  During the first 15 years of my career, I have virtually no exposure to  Pennsylvania's Unemployment Compensation Law.  Unemployment claims were "below the pay grade" of the Firms for whom I was employed and/or was a Partner, and I had won some pretty significant cases.

Pennsylvania Lawyer With Significant Experience in Handling Willful Misconduct Unemployment Referee Hearings in King of Prussia, Springfield, Malvern, Philadelphia, Bristol, Reading and Lancaster

In 2006, I formed my own Firm, mostly representing individuals in lawsuits against employers.

A couple of years later my client, for whom I had filed an EEOC Charge of Age Discrimination with the intention to thereafter file suit in federal court, asked me to help her with her upcoming Pennsylvania Unemployment Hearing before a Referee. I said, "Sure," and I think we agreed that she would pay me $500 if we won any money in her yet-to-be-filed federal case. I had no idea what I was getting into!

Pennsylvania Unemployment Hearings Before A Referee - What Happens, What to Expect and How to Prepare

The client, who remains a friend, was really wound up about being fired, and we spent like 4 hours preparing for the Hearing.  Her employer, a large retailer (they are always so prepared for Unemployment  Hearings, because they do them all of the time, and unemployment is a huge expense for them), had 3 witnesses, and was loaded for bear!

Since my client had been fired, the company had to prove that she engaged in willful misconduct in order to win the Hearing.

Referee Hearings Are About This Colorful!
We went to a hotly contested, two-hour long Hearing before an Unemployment Referee, during which many crucial evidentiary issues (many relating to hearsay) were decided and substantial testimony under oath was elicited.  Virtually all of the evidence and testimony concerned why my client had been fired (alleged falsification of time records) and the evidence proving that (witness testimony, time cards, etc.)

We ultimately won, but I suggest it was by the narrowest of margins!  Moreover my client and I knew that there was no way that she would have won had I not been in the Hearing with her.

As a result, my client received $573 a week in benefits over the following 18 months (she couldn't find a comparable job and, back then, you could get extended benefits). So, my efforts on her behalf resulted in her receiving around $41,000.  That's $41,000.

Pennsylvania's Unemployment Compensation Board of Review Does NOT Permit or Provide a Second Bite at the Apple

Soon after, I learned that one's recourse in the event of a loss before the Unemployment Referee is limited to the Pennsylvania's Board of Review's examination of the evidence and testimony developed during the Referee Hearing (i.e. one does not get a second bite at the hearing apple in order to introduce evidence "I didn't know was going to be important.") That's when it hit me that representing folks at Unemployment Hearings was an important service that I could provide.      

Attorney's Fees - Is it Worth it to Hire a Lawyer to Represent Me for my Pennsylvania Unemployment Compensation Referee Hearing?  

Months after the Referee Hearing, I filed a federal lawsuit on my client's behalf, fought off a motion to dismiss the case and engaged in written discovery, along with a deposition.  I probably spent about 40 hours of time on those matters and related responsibilities..  As it turned out, her age discrimination case lacked substantial merit, and we settled for a relatively small sum (less than $41,000).  The client paid me my contingent fee, plus the promised $500 UC Hearing fee.

There are two economic realities that I can assure you resulted from my representation of the client in these two separate matters:  1) I earned far more "per hour" handling the Unemployment Hearing than I did prosecuting the federal lawsuit; and, 2) my client financially benefited far more from the 6 hours or so I spent representing her in connection with her claim for Unemployment benefits than she did as a result of the 40 or more I exhausted prosecuting her age claim in federal court!

The economics of the two separate representations were immediately clear to me, as was something else.  Something incredibly important.

"Prior Testimony" of Employer's Witnesses Given at a Pennsylvania Unemployment Referee Hearing Admissible and May Be Used Against Company That is a Defendant in a Subsequent Discrimination Lawsuit

The Referee Hearing had been recorded, and we were able to get a transcribed copy of the proceedings via the issuance of a subpoena after we filed our federal age discrimination lawsuit.  This is really key in this setting because:

*  In any lawsuit, witness testimony taken under oath prior to a Trial is of substantial importance, because it at once predicts and limits what the witness can say at Trial.

Proof of Pretext Key to Proving Discrimination
**  In an employment discrimination lawsuit involving a claim of unlawful discharge, few things are more important than the employer's stated reason for terminating the employee.  It is from there that I attempt to establish that said reason is merely a pretext constructed to hide the employer's true, discriminatory motive.

***  In a willful misconduct Unemployment Hearings before a Referee, the central issues are: 1) What does the company say is the reason that it fired the claimant; and, 2) What evidence exists that supports the employer's stated reason for the termination?  

So, in an Unemployment Hearing where the employee's alleged willful misconduct is at issue, the testimony of the employer's witnesses concerning why the employee was fired, and the evidence offered through testimony to support its claim, is extremely significant.

"Prior Testimony" Invaluable
Here, the employer's main witness in the lawsuit was a manager who had testified at the Unemployment Hearing. However, since the company had done so many Hearings before this one, had no idea we were going to sue and did not expect my presence, it had not hired a lawyer.

Consequently (and to my delight), its witnesses were not prepared to be cross-examined by an attorney who had conducted many examinations in the past.

Pennsylvania Unemployment Hearing Transcript May Be Subpoenaed
Testimony that is taken under oath in a legal proceeding is always admissible in any future legal proceeding on related issues.  Hence, after I filed the age discrimination lawsuit in federal court a few months after the Hearing had concluded, I had a subpoena issued and obtained a transcribed copy of the Hearing.  There was the recorded testimony of the relatively unprepared key witnesses for the company; testimony on the most central facts at issue in the lawsuit that could be neither altered nor avoided. There was nothing the company's lawyer could do.

Thus, while my client's case was weak, I did at least have some very useful testimony that benefited my client during the settlement process.

Lawyer Near Philadelphia Who Represents Claimants in Unemployment Cases Dealing With Independent Contractor, Self-Employment, Overpayment and Sideline Employment Issues

Thereafter, I began to represent more and more claimants throughout the  Unemployment claim process.  It was (and remains) exhilarating to win a hard-fought Referee Hearing.  Handling Unemployment Hearings keeps my litigation skills sharp, and winning provides crucial financial assistance to my clients during a difficult time in their lives.

Moreover, I from time to time am able to take great advantage of the testimony and evidence secured during an Unemployment Hearing in a subsequent federal lawsuit.

However, I have along the way, discovered a few realities that caused me dismay.

Pennsylvania's Unemployment Law is  Remedial Statute Intended to Assist Individuals Who Lost Their Job "Through No Fault of Their Own"

Initial Determination Crucial

You see, the Pennsylvania Unemployment Law, is what is deemed a "remedial statute" - that is to say, a law that should be interpreted in a way to assist those for whom is was enacted - claimants seeking unemployment compensation benefits.  Remedial statutes are in contrast to "punitive laws" - such as the Pennsylvania Criminal Code, which are enacted in order to protect the public via by deterring and punishing criminal behavior.  

Decides Pennsylvania Unemployment Claims

The initial decision as to whether benefits will be granted set forth in a document called a Notice of Determination  which are prepared by people employed by the Pennsylvania Service Center. Consistent with human nature, some of the folks that work at the Service Center tend to rule in favor of employers wherever possible, thus undermining the purpose of the Law.  I do not know whether this is a result of personal politics or self-preservation, although I suggest the two rationales make excellent bedfellows.

Some Referee's More "Fair" Than Others
Even worse, I have found, some Pennsylvania Unemployment Hearing Referees seem to, uhhhmmm, direct Hearings in such a way as to maximum the likelihood of victory for the employer, at the expense of the claimant.  Since a claimant has only one chance to present evidence and testimony at a single Referee Hearing, any employer-partial rulings by a Referee during the Hearing can be devastating, and leave the claimant with only one further opportunity - an appeal to Pennsylvania's Unemployment Compensation Board of Review.

These injustices, in combination with the economic and strategical value of representing claimants, led me to delve deeper into the Pennsylvania Unemployment Law.  It was a small step from there to start a Blog primarily motivated by a desire to help the public by informing it in plain language about the things I was learning.  

Experienced Philadelphia Attorney Who Handles Voluntary Quit Unemployment Referee Hearings in Pennsylvania

Many Hours of Blogging Over the Years!
CLICK HERE TO JUMP TO JOHN'S YOUTUBE CHANNEL
On March 10, 2010, I published the first of what has turned out to be hundreds of Posts concerning a wide variety of issues commonly implicated in the Pennsylvania Unemployment Compensation claim process. Those Posts, and many others I have written on a wide variety of employment law issues important to the working man and woman, have since generated in excess of 900,000 page hits.  It is humbling and rewarding.

In July, 2010, I "produced" my first (rather crude) video on YouTube; that Video, and others relating to Unemployment Law and Employment Law in general, has since garnered in excess of 135,000 views!  Who would have thought?

Our FAQ on Pennsylvania Unemployment Law is - well - Chock Full of Information
 Need Lawyer to Help You Complete an Application for Unemployment Benefits, a Self-Employment or Independent Contractor Questionnaire or to Represent You at a Referee Hearing in Chester County, Montgomery County, Delaware County, Berks County, Bucks County or Lancaster County?  


Since I wrote that first Post and made that first Video, I have represented more than a thousand claimants on a vast array of matters, spanning from how to complete the Pennsylvania Department of Labor's Online Initial Claims Form to how to Appeal a Referee's Decision to the Board of Review, and including a (rather lengthy) Pennsylvania Unemployment FAQ page covering everything in between!

Have I helped clients complete Claimant Questionnaires? Many times (a reasonable fee for telephone assistance taking roughly 30 minutes is requested).

Have I helped clients complete Independent Contractor Questionnaires?  Tricky little devils with which I am quite familiar (a reasonable fee for telephone assistance taking roughly 45 minutes is requested).

Feel Misclassified? You Probably Are
Am I an Employee or an Independent Contractor?  Am I Self-Employed Under Pennsylvania Unemployment Law?

NOTE:  Intentionally misclassifying "true employees" as "independent contractors" is becoming more and more commonplace, though, and winning self-employment/independent contractor Unemployment Hearings is often quite feasible.

Addresses, Pictures, Directions, Phone and Fax Numbers and e-Mail Addresses to Pennsylvania Referee Offices Unemployment Referee Hearing Offices in Southeastern Pennsylvania.

Overhead View of King of Prussia, Pa
Unemployment Referee Hearing Office
Located at 100 Ross Road -
Careful, Though! 
As for Referee Hearings, I have handled hundreds of them at Hearing Offices throughout Southeastern Pennsylvania such as in King of Prussia, Malvern, Springfield, Reading, Bristol and Philadelphia (fee varies depending upon Hearing location and, in some instances, complexity of matter). 

NOTE: Click on any City identified above to jump to contact information, etc. for Referee Office located therein.

Unemployment Benefits Are Supposed to be 
Available to All Who Are Unemployed "Through No Fault of Their Own"
All of the Posts and Videos have been created on the fly; when an issue popped into my head, I wrote about it or grabbed my camera. However, I have never attempted to create an organized series of Posts detailing the entire Unemployment Compensation from start to finish, and all issues in between.


This Series is an attempt to do just that.  Hence, I will start with the Pennsylvania Department of Labor's Online Application, and will in the coming months thereafter address every issue that I can think of that can arise in between filling in your first name on the Application, and signing an Appeal to the Unemployment Compensation Board of Review.

Every time I complete a Post, I will list it below, with a Link to jump to same.

*  How To Complete the Pennsylvania Unemployment On-Line Application for Benefits - Did I Quit or Was I Fired?  Posted May 15, 2016

I hope that you find this Series helpful!

John A. Gallagher, Esquire - Represents Claimants
Seeking Pennsylvania Unemployment Compensation Benefits
                                               Philadelphia Unemployment Lawyer

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.


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