For a worker who has lost a job, unemployment compensation (UC) can be the difference between keeping the rent or mortgage paid and being faced with eviction or foreclosure. Yet many eligible workers are turned down at first. When that happens, the worker has just 21 days to appeal and ask for a hearing before a referee in the Pennsylvania Department of Labor & Industry. At that hearing the referee decides not only whether ongoing weekly benefits will be paid — usually for up to six months — but also whether the worker receives a lump sum of back benefits reaching back to the date of the original claim. The stakes are high, the rules are technical, and the worker is often facing them alone.
The Issues Workers Face
On our legal topics webpage, we give a brief overview of who should apply for benefits and how to do so (See: Unemployment Compensation). Some clients call with questions about eligibility, not sure if they can apply, or they receive notices of overpayments, which may be labeled fault or no-fault. These are good reasons to review the Department of Labor Website or call NPLS or a private attorney for advice (See: https://www.pa.gov/services/dli/apply-for-unemployment-compensation-benefits). Many cases where representation is needed fall into a few familiar patterns. An employer may claim the worker was fired for willful misconduct. But the law puts the burden on the employer to prove the worker deliberately violated a known, consistently enforced rule; poor performance or an honest mistake is not enough.
If a rule is enforced only selectively, that will not be enough to support a denial of benefits. Other workers are wrongly treated as having quit, but if the employee did not quit, or they dd so for a very good reason (“necessitous and compelling”), they will be eligible for benefits. In that kind of case, the burden is on the employee to demonstrate the reason. Workers rarely know these rules. An advocate does — and knows how to build the record with the evidence that wins: phone records, emails, and the testimony of witnesses who were actually there.
Representation Makes a Difference
A client was denied after her employer accused her of violating a policy. The policy had never been raised before — and a coworker in the same situation had not been fired. With representation at the hearing, she was found eligible and awarded back benefits of more than $15,000. In another matter, a client with limited English was sent home after a misunderstanding and said he quit without knowing what the word meant. He tried to return, was refused, and was denied benefits. With representation, the decision was reversed and he began receiving $1,700 a month. Very often, effective advocacy — subpoenaing a witness, entering or excluding the right documents, cross-examining effectively — turns a denial into an award.
At legal services programs, we help clients evaluate their cases and provide representation if we have available staff or volunteers to represent in cases that appear to have a chance of success based upon the facts and the law. We do have some private attorneys who provide excellent help as volunteer pro bono attorneys. Third-year law students who are certified may also provide representation with supervision. This is a great area of law for volunteers, because although the cases come up in a few weeks, they generally have limited legal issues and the hours spent on the case can be so beneficial to the client. We also have staff attorneys and paralegals with supervision who provide representation for clients.
Whom the Claimant May Bring
Pennsylvania law expressly allows a claimant to appear with help. Under Section 702 of the Unemployment Compensation Law, “[a]ny individual claiming compensation … may be represented by counsel or other duly authorized agent” — that is, by a lawyer or a non-lawyer such as a trained advocate or a trusted friend. A companion provision confirms that “[a]ny party …may be represented by an attorney or other representative.” The Department’s own regulation lists who may take part in the hearing: “[p]arties, witnesses, counsel, authorized agents and observers.” A worker who does not speak English fluently may testify through an interpreter, consistent with due process. To have a translator available, the request must be made in advance and should be made to the UC office at the telephone number on the hearing notice.
A worker standing alone against an employer is at a real disadvantage, as employers are generally prepared and often represented. Having an advocate, whether it is a private attorney, legal services attorney, paralegal, or pro bono attorney can make all the difference in understanding your rights and helping secure benefits for those who were initially turned away or who face an employer’s appeal of the service center decision. If you or someone you know has been denied unemployment benefits, seek help promptly and file the appeal within the 21 day deadline if you disagree with the decision.
