What is Willful Misconduct Under Pennsylvania's Unemployment Law?
"Willful misconduct" is a term of art generically used to describe any one of hundreds of different conduct, such as theft, insubordination, excessive latenesses or absences (after warning), coming to work intoxicated, refusing a drug test, fighting or cursing with a co-worker, falsification of work records, etc.
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| Referees Do Nothing but Conduct Hearings All Day Long They Follow the Rules of Evidence |
In a willful misconduct hearing, the employer has the burden of proving that the employee engaged in misconduct for which he/she was fired. There is A LOT that goes into that! Basically, though, the employer must prove through competent evidence that the employee engaged in misconduct, and that misconduct was the reason the employee was fired.
The Marking of Documents Into Evidence - an Incredibly Important Part of the Hearing
In a willful misconduct, the first thing a Referee does is mark documents into evidence. The Referee has done this a thousand times, and moves QUICKLY through the documents. The employer will seldom object to any of them since they are likely the sponsors of the documents!
HERE ARE SOME OTHER LINKS YOU MAY FIND WORTHWHILE:
You must be prepared to object to hearsay documents at that point, or they will be admitted into evidence (and that is a real problem). Most lay people do not know when or how or on what basis to object to hearsay - that is why it is essential to consider hiring counsel. Once the hearsay is in - IT IS IN - and if the evidence is strong, you may have lost the willful misconduct hearing before the employer offers any testimony at all! This happens at a high percentage of hearings where the claimant is not represented by counsel - and the claimant doesn't even know they have lost!
The Employer Goes First at a Pennsylvania Willful Misconduct Appeal Hearing and You Must be on Your Toes
In a willful misconduct hearing, the employer presents its evidence FIRST. In our experience, they often rely on hearsay to accomplish that. Hearsay is discussed below.
Here is the thing about hearsay, though. If you do not make a TIMELY objection to the hearsay, it will be admitted into evidence. And, once it is in evidence, it is hard to refute, since the author of the hearsay is not present for cross-examination!
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| Timely Objections Essential |
What is Hearsay at an Unemployment Hearing?
Simply stated, for our purposes here, hearsay is any oral or written statement made by anyone who is not in the room. So, if there is a written statement in the file from Mother Teresa saying you stole money, and Mother Teresa is not in the room, it is hearsay. If the employer's witness says that Gandhi told her he say you drinking at work, and Gandhi is not in the room, it is hearsay.
You need to object to hearsay in a timely fashion or else any such objection will be deemed waived.
What Should I Say at a Pennsylvania Unemployment Hearing?
If you can stop the employer from meeting its burden (often through timely hearsay objections), than you may not need to say much at all (other than a basic denial of having engaged in the acts for which you are accused). That said, many laypersons do not understand the legally intricate nature of "burdens of proof," and inadvertently place themselves at the scene of the crime unwittingly, and end of losing a case they should have won.
Simply stated, for our purposes here, hearsay is any oral or written statement made by anyone who is not in the room. So, if there is a written statement in the file from Mother Teresa saying you stole money, and Mother Teresa is not in the room, it is hearsay. If the employer's witness says that Gandhi told her he say you drinking at work, and Gandhi is not in the room, it is hearsay.
You need to object to hearsay in a timely fashion or else any such objection will be deemed waived.
What Should I Say at a Pennsylvania Unemployment Hearing?
If you can stop the employer from meeting its burden (often through timely hearsay objections), than you may not need to say much at all (other than a basic denial of having engaged in the acts for which you are accused). That said, many laypersons do not understand the legally intricate nature of "burdens of proof," and inadvertently place themselves at the scene of the crime unwittingly, and end of losing a case they should have won.
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| Don't Confess by Mistake! |
Should I Hire an Attorney for My King of Prussia Unemployment Appeal Hearing?
That is why retaining an attorney for an unemployment hearing before a Referee is smart and experienced - has done this a thousand times; these are legal proceedings conducted in accordance with the laws of evidence, and are tricky to navigate - particularly when your opponent has been to many such hearings, and is being guided by savvy lawyers and HR personnel.
Call Today - 610-647-5027
That is why retaining an attorney for an unemployment hearing before a Referee is smart and experienced - has done this a thousand times; these are legal proceedings conducted in accordance with the laws of evidence, and are tricky to navigate - particularly when your opponent has been to many such hearings, and is being guided by savvy lawyers and HR personnel.
You Get Only One - Hearing - One Chance to Present and Exclude Evidence - One Hearing to Present and Examine Witnesses
Can I Appeal a Referee Decision After My Unemployment Appeal Hearing in Pennsylvania?
Sure, you can appeal - but you do not get a new hearing. You do NOT get a new chance to correct any mistakes, prove any of the employer's evidence was wrong, present any new witnesses, offer any new evidence. It is a paper appeal - that means the Board of review will simply print out the hearing transcript, review the documents admitted into evidence and decide whether it agrees with the referee (it often does).
There is a lot at stake, as you know. You may even have an additional case for wrongful termination, discrimination or illegal retaliation. That is why calling an attorney before your appeal hearing may be essential!
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