Wednesday, August 31, 2016

Should I File My Initial Application for Pennsylvania Unemployment Compensation Benefits While I am Getting Severance?

John A. Gallagher is a Philadelphia area employment lawyer who assists Pennsylvania employees located in towns such as King of Prussia. West Chester, Media, Norristown, Villanova, Wayne, Paoli, Bryn Mawr and Wayne review and negotiate severance contracts.  Located in Chester County, Mr. Gallagher will provide an evaluation of your separation and release agreement for a reasonable flat fee and, where appropriate, will try to increase the amount of severance you have been offered on a Contingent Fee basis.

Need Legal Help With a Severance?
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All Types of Employment Agreements
In my Preface to this Series, entitled Pennsylvania Unemployment Handbook for Claimant Employees, I noted that I would over the coming months publish Posts taking employees on a step-by-step tour through the Pennsylvania Unemployment process.  This is the fourth in my Handbook Series.

Questions?  John will spend 5-10 minutes with you discussing your current work situation, your disability/FMLA leave, your non-compete agreement, your wage claim, your unemployment claim or your potential lawsuit at no charge to you.  Call 610-647-5027.  John is usually available 24/7.

You may also Click Here to e-mail John directly.

Severance Payments Can Cause a Great Deal of Confusion
Under Pennsylvania's Unemployment Compensation Law
After I provide a brief overview of the basic requirements concerning the deadline for submitting one's initial application for Pennsylvania Unemployment benefits under the Pennsylvania Unemployment Compensation Law ("the Law"), I will explore a recent decision by a Pennsylvania appellate court that addresses the requirements when one is receiving severance pay.

Do I Submit My Initial Application for Unemployment Benefits in Pennsylvania After the Last Day that I Worked or After I Receive My Final Paycheck?

In the third Post in my Handbook Series, I recited the controlling passages of the Law in the course of exploring when a person is deemed "unemployed" under the Law (in general, on the date one last receives a paycheck as a "regular" employee), the deadline for submitting one's initial application for benefits after losing full-time employment (within 2-weeks of receiving that last paycheck), the consequence of a late filing (complete loss of eligibility) and the 5 "legal excuses" for late filing set forth in the Law.  Please read that Post carefully in tandem with this one!

Should I Wait Until After my Last Severance Payment to Apply for Pennsylvania Unemployment Benefits?


The answer to that question used to be very simple, because up until 2012, whether a claimant was receiving severance or not had no impact or bearing on his/her right to unemployment compensation. However, as explained in detail in my Post regarding the change to the Law made in 2012, the Law provides for a partial and/or complete reduction of benefit eligibility for individuals who receive in excess of a certain threshold of severance pay (as of August 2016 the figure is +/-$19,400).

If You Do Not File a Timely Claim for Benefits,
You May be Completely Disqualified
However, irrespective of the 2012 amendment to the Law, a claimant should file his/her initial application for benefits just as they would if they were receiving no severance at all.  In the course of doing so, claimants should provide the terms of their severance arrangement to the Service Center, which will thereafter advise as to how to proceed in the future.

In the Pennsylvania Commonwealth Court's 2015 Decision in Krum v. Unemployment Compensation Board of Review, the Court Held That a Claimant Who Waited Too Long to Apply for Unemployment Compensation Was Completely Disqualified from Receiving Benefits

The following passages from the Pennsylvania Commonwealth's Court's December, 2015 decision in Krum make clear that even an honest and reasonable mistake will not save a claimant who files claim for benefits too late:

In June 2014, Claimant filed an initial application for UC benefits with an effective date of June 8, 2014. Claimant also advised the local UC service center that his employer was paying him severance pay. Shortly thereafter, Claimant received a notice of determination from the Department finding him ineligible for benefits because of a deduction of severance pay for the week ending June 14, 2014 through the week ending October 4, 2014. However, and of special significance here, the notice further advised Claimant that he would be eligible for $573 in weekly benefits beginning the week ending October 11, 2014.  Claimant also reviewed information in the UC Handbook informing him that the Department would deduct severance pay from his UC benefits... 

Claimant received his last severance pay on January 30, 2015.  On February 2, 2015, Claimant contacted the UC Office, which informed him he could have reopened his claim for benefits as of the week of October 5, 2014…

Essentially, Claimant testified the language of the UC Handbook and the Department’s notice of determination misled him into believing he could wait until he stopped receiving the severance payments to reopen his claim for UC benefits because he only had nine-and-a- half weeks of eligibility left…
In response, the Board asserts it properly denied Claimant’s request to backdate his claim for six weeks because the Department did not mislead him regarding the requirement that he file his claims in a timely manner...

Clearly, both the Department’s notice and a UC representative apprised Claimant that he would be eligible for UC benefits beginning the week ending October 11, 2014.  Therefore, Claimant’s decision not to reopen his claim until he received his last severance payment cannot be attributed to an error or mistake by the Department.

 Consequently, we discern no error in the Board’s decision denying Claimant’s request to backdate his claim six weeks under 34 Pa. Code §65.43a(e).  In short, Claimant’s subjective confusion, based on his interpretation of the Handbook and notice of determination, does not equate to an error or mistake by the Department.  Rather, as the Board determined, Claimant’s circumstances, based on his own interpretation of the Law’s severance deduction, after having been specifically advised by the UC authorities to reopen his claim the week of October 5-11, 2014, warrant, at best, a two-week backdate under the “reasonable and good faith efforts” ground for extended filing in 34 Pa. Code §65.43a(e).

Provide Accurate Information and Guidelines Should be Made Clear
If You Wait Until You Have Received Your Last Severance Payment to File an Initial Claim for Pennsylvania Unemployment Compensation, You Will Be Deemed Completely Ineligible for Pennsylvania Unemployment Compensation

The essence of Krum is as follows:

1)  if you become unemployed and are receiving a severance, file your claim just one would if he/she was not receiving any severance pay at all;

2)  in your initial application, provide the Commonwealth with the terms of your severance arrangement;

3) if the Service Center does its job properly, you will thereafter receive notice as to the impact of your severance arrangement upon your eligibility for benefits, which notice will inform you as to the date on which you will become eligible for payment of full benefits (in Krum, the date was October 11, 2014 and the full benefit amount was $573);

4) thereafter, you need not submit bi-weekly claims for benefits until the date of your eligibility for full  benefits.  However, you must submit a bi-weekly claim for benefits within 2-weeks of said date, or suffer a total loss of eligibility.

Click Here to read more concerning the backdating principles set forth in 34 Pa. Code §65.43a(e) discussed in Krum.  

Helping Pennsylvania Workers With FMLA Issues Since 1991

Philadelphia Area Family and Medical Leave (FMLA) Attorney Helping Employees With Leave Requests and Short-Term Disability Applications

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

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia County, Delaware County, Montgomery County, Bucks County, Chester County, Berks County and Lancaster County.

Pennsylvania Unemployment Compensation Lawyer Helping Employees With Unemployment Compensation Issues Benefit Applications, Claims, Questionnaires, Appeals and Referee Hearings

John A. Gallagher is an unemployment lawyer who represents claimants in Pennsylvania. 

John typically represents workers who need an employment lawyer throughout Southeastern Pennsylvania, including those working in Philadelphia, Chester, Montgomery, Delaware, Bucks, Berks and Lancaster Counties.  

Pennsylvania Unemployment Hearing Lawyer Will Discuss Your Benefit Issues  

If you believe you require guidance concerning a Pennsylvania Unemployment Compensation Issue, and reside in or near the Philadelphia area, feel free to send me an e-Mail or give me a call.  I have represented workers who live or are employed in or near Ambler, Chadds Ford, Berwyn, Paoli, Manayunk, Roxborough, Lansdowne, Bethlehem, Bird In Hand, Birdsboro, Birmingham, Boothwyn, Bowmansville, Boyertown, Bridgeport, Bristol,  Brookhaven, Brownfield,  Bryn Athyn,  Buckingham,  Levittown, Limerick, Abington, Allentown, Collegeville, Blue Bell, Eagleville, Norristown, Drexel Hill, Oaks, Doylestown, Coatesville, Lionville, Newtown Square, Broomall, Aston, Avondale, Burlington, Caln, Chadds Ford, Chalfont, Charlestown, Chester, Concordville, Conshohocken, Coventry, Cranberry,  Crum Lynne,  Darby, Daylesford, Devault, Douglassville, Eagleville, East Bradford, East Brandywine, East Coventry, Villanova, Bryn Mawr, Landale, Lancaster, Malvern, Paoli, Downingtown, Phoenixville, Havertown, Springfield, Blue Bell, West Chester, Media, Nether Providence, Devon, Philadelphia, Allentown, Bethlehem, Norristown, Cheltenham, Chester Springs, Audubon, and East Fallowfield.

Need an Experienced Lawyer to Help You With an Unemployment Referee Hearing in Philadelphia, King of Prussia, Malvern, Springfield, Lancaster, Reading or Bristol?

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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