Tuesday, August 30, 2016

When Should I File My Initial Application for Pennsylvania Unemployment Compensation Benefits?

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 third in that series.

When Am I Deemed "Unemployed" From My Full-Time Job So That I Am Eligible for Pennsylvania Unemployment Benefits?

Knowing when to file a claim for Pennsylvania Unemployment Compensation is not always an easy thing to determine. In this Post, I will provide a basic overview of the laws that regulate this issue. Given the wide variety of circumstances that sometimes make the question of knowing when to file difficult to answer, I will provide only general guidelines applicable in most cases.

Do Not Outsmart Yourself - File Within 2-Weeks of The Last Date That You Worked UNLESS 
You Are Going to be Paid for Longer Than That
Section 401(c) of the Pennsylvania Unemployment Compensation Law (43 P.S. §801(c)) 

Section 401(c) of Pennsylvania's Unemployment Compensation Law ("the Law") provides that unemployment compensation shall be payable to an employee who has "become unemployed" and who “has made a valid application for benefits with respect to the benefit year for which compensation is claimed and has made a claim for compensation in the proper manner and on the form prescribed by the department.”  

Section 401(c) of the Pennsylvania Unemployment Compensation Law (43 P.S. §753(u)) 

The definition of "unemployed" is found at 43 P.S. § 753(u) and reads as follows:  

An individual shall be deemed unemployed (I) with respect to any week (i) during which he performs no services for which remuneration is paid or is payable to him and (ii) with respect to which no remuneration is paid or payable to him, or (II) with respect to any week of less than his full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly benefit rate plus his partial benefit credit.   

The proper interpretation of this provision, in my view, is that one is fully "unemployed" if during any given week he/she 1) provides no services for which payment is expected in the future; and 2) is not paid a regular payroll paycheck.

NOTE:  I will not attempt to address partial unemployment in this Post.

Before I discuss the general rules relating to the issue of when to file an initial claim for benefits in cases of complete separation from employment, I will touch upon two common areas of confusion that I discuss elsewhere more fully - severance and "stay on" arrangements.

When Should I File for Pennsylvania Unemployment Compensation if I am Terminated but Receiving Severance Pay?  Should I Submit my Application for Unemployment Benefits if I am Told That I am No Longer to Come Into Work but Will Continue to be Paid?

Two relatively common situations often confuse Pennsylvania employees (and for good reason) when it comes to the issue of when to submit an initial application for benefits under the Law. The first situation is when severance pay is offered and accepted.  The second is when an employee is told that he/she need no longer come into work, but shall continue to be employed by the company and will be continue to be paid as an employee for a finite period of time.  

Severance payments are NOT a regular payroll paycheck.  Therefore, and as explained more fully in a separate Post, you should file for benefits within the time-period required for all claimants, and when doing so advise the Service Center as to your severance arrangement.  
When in Doubt, Submit Your Application and Explain Situation to the Service Center
On the other hand, if on June 1 you are told that you no longer need to come into work, but will continue to be employed through June 30 and will receive regular bi-weekly payroll checks throughout June, you will not become "unemployed" until you receive your June 30 payroll check.   

What Are the Application Procedures for Filing for Pennsylvania Unemployment Compensation Benefits?

All of the procedures relating to filing claims for benefits are found in Chapter 34 of the Pennsylvania Code, sections 65.31 through 65.63

As discussed below, the penalties for late filing can be severe, so understanding the applicable deadlines is crucial.
Do Not Outsmart Yourself - File Within 2-Weeks of The Last Date That You Worked UNLESS
You Are Going to be Paid for Longer Than That
Should I File My Initial Claim for Unemployment Benefits in Pennsylvania on My Last Day of Work or After I Have Received My Last Paycheck?

34 PA Code Section 65.43a sets forth "the proper manner and on the form prescribed by the department” and states in relevant part as follows:

(     For a week in which a claimant was employed less than his full-time work, the claimant shall file a claim for compensation not later than the last day of the second week after the employer paid wages for that week. 

Per Section 65.43a, one should file for benefits within 2 weeks of receiving his/her last paycheck unless he/she knew on that day that no further pay would be coming (this is often the case in quit situations or where the employee is given a final paycheck on the date of termination/lay-off, etc.), in which case the application must be filed within 2-weeks of his/her last date of work.  

Penalty for Late Filing Without Legal Excuse Can Be Dire
Will I Be Completely Disqualified From Receiving Pennsylvania Unemployment Compensation Benefits If I File My Claim Too Late?

Numerous Pennsylvania appellate courts have held that one who files an application for unemployment benefits too late without justifiable excuse is completely disqualified from receiving benefits.  In a 2015 decision, Krum v. UCBR, the Commonwealth Court noted:

Generally, in cases involving a late filing for UC benefits, a claimant who files late is ineligible unless misled by UC officials.  Menalis v. UCBR, 712 A.2d 804 (Pa. Cmwlth. 1998) (citing Snipas v. UCBR, 401 A.2d 888 (Pa. Cmwlth. 1979)). 

I believe Krum, which I discuss in full detail here, is a bit overbroad in declaring that one may avoid the death penalty of complete disqualification only by proving that he/she was "misled by UC officials."  In fact, there are a number of "excuses" that enable a late application to be backdated. 

What Can I Do if I File My Initial Application for Pennsylvania Unemployment Compensation Benefits Too Late?  With Pennsylvania's Department of Labor Backdate My Unemployment Application?

If one files his/her initial claim too late, the application may nevertheless be backdated (and the loss of benefits caused by the late filing thereby reduced or eliminated entirely), if one of the excuses for late filing found within 65.43(e) can be satisfied. Those excuses (and the backdating allowances) are as follows:

·       1)  The Department suspends accepting filings or is unable to handle all filings, due to an excessive volume of phone calls or other reason (late application will be backdated 6 weeks);

·       2)  The claimant attempts to file by telephone, Internet or fax transmission in accordance with §65.41 (relating to filing methods), the method used to attempt to file is unavailable or malfunctions, and the attempt to file occurs on the last day that the claimant could timely file by the method used (2 weeks);

·       3)   A UC Office fails to accept a filing due to error or mistake by the Dept. (up to 52 weeks);

·       4)  Sickness/death of member of the claimant’s immediate family or an act of God (2 weeks);

·       5)  Other - if the claimant makes all reasonable and good faith efforts to file timely but is unable to do so through no fault of the claimant (2 weeks) 

     NOTE:  Late applicants who are concerned that they do not fit into 1-4 above will naturally attempt to argue that number 5 ("Other") applies to their situation.  I would not count on that; it is reserved for truly exceptional circumstances.  
Do Not Count on Meeting the "Other" Criteria -
Filing Earlier Almost Always Preferable to Filing Too Late!



The Best Practice is to Submit Your Initial Application for Unemployment Benefits Within Two (2) Weeks of Your Last Day of Work or Immediately After You Receive Your Final Paycheck

Given that an application filed more than two (2) weeks after the applicant has become unemployed can lead to complete disqualification of eligibility, the best approach, in my view, is to file within two (2) weeks of the the last day that you went into work UNLESS you have been told that, even though you are no longer required to come into work, you will be paid for 2-weeks or more in the future.  If that is your situation, you are not actually unemployed UNTIL you receive that last paycheck, and you should file for benefits immediately thereafter.      

Helping Pennsylvania Workers With FMLA Issues Since 1991

Philadelphia Area Unemployment Compensation Lawyer Helping Employees With 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 Villanova, Bryn Mawr, Landale, Lancaster, Malvern, Paoli, Downingtown, Phoenixville, Havertown, Springfield, Blue Bell, West Chester, Media, Nether Providence, Devon, Philadelphia, Allentown, Bethlehem, Levittown, Limerick, Abington, Allentown, Collegeville, Blue Bell, Eagleville, Norristown, Drexel Hill, Oaks, Doylestown, Coatesville, Lionville, Newtown Square, Broomall, Aston, Avondale, Norristown, Cheltenham, Chester Springs, Audubon, Ambler, Chadds Ford, Berwyn, Paoli, Manayunk, Roxborough, Lansdowne, Bethlehem, Bird In Hand, Birdsboro, Birmingham, Boothwyn, Bowmansville, Boyertown, Bridgeport, Bristol,  Brookhaven, Brownfield,  Bryn Athyn,  Buckingham,  Burlington, Caln, Chadds Ford, Chalfont, Charlestown, Chester, Concordville, Conshohocken, Coventry, Cranberry,  Crum Lynne,  Darby, Daylesford, Devault, Douglassville, Eagleville, East Bradford, East Brandywine, East Coventry and East Fallowfield.

Need an Experienced Lawyer to Help You With an Unemployment Benefits Claim or Referee Hearing? 

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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