You lost your job and your employer has threatened to fight your claim for unemployment benefits. Now what? Losing your job is bad enough without the added uncertainty of being denied the limited income unemployment compensation provides. Knowing your rights and the process to follow will help you collect.
Filing Your Claim
Today, most claims begin online. Visit www.uc.pa.gov for initial claim filing instructions and for biweekly filing thereafter. Be sure to answer the online questionnaire truthfully and completely. Intentionally false or misleading answers may not only result in termination of benefits, but may result in action to recover benefits already paid and penalties.
Notice of Financial Determination
After filing a claim, you will receive a Notice of Financial Determination which reflects how much your employer(s) reported you earned during your “base year.” A “base year” is the first four quarters of the last five full quarters prior to the application for benefits. For example, if you filed your claim on May 1, 2015, your base year would be from January 1, 2014, through December 31, 2014. Even though May 1st is in the second quarter of 2015, it is not a full quarter.
It is very important to review your Notice of Financial Determination carefully to compare the income your employers reported to what you believe you earned. If your employers underreported your wages, it may affect the amount of benefits you receive. An employee must earn sufficient wages and credit weeks during the base year in order to be eligible for unemployment benefits. If you believe the Notice of Determination is not accurate, you must file an appeal by the date on the Notice. Failing to appeal in a timely manner may cost you your right to contest the reported earnings and financial eligibility for unemployment benefits.
Notice of Determination
Even if you are financially eligible for benefits, your benefits may be denied for other reasons. At the time you file your claim, the employer is also notified and given an opportunity to submit information regarding the circumstances of your separation. After reviewing your claim and the employer’s response, the unemployment service center will mail an initial Notice of Determination to both parties. The Notice of Determination will state whether benefits have been granted or denied and the reasons for the determination.
In general, there are only two reasons why you can be denied unemployment benefits: (1) you quit, or (2) you engaged in willful misconduct. If you quit, you had better have a darn good reason for doing so if you expect to receive benefits. The law sets the bar high for the employee and requires “necessitous and compelling” circumstances to justify quitting. These may include your employer’s failure to pay you in a timely manner, a significant change in work hours or other working conditions, or a spouse’s job relocation. Employer or co-worker harassment or mistreatment may justify quitting, but only if it is severe and you have first attempted to address the issue with the employer. “Necessitous and compelling” means what it says. The circumstances must be so bad, any reasonable person in your position would quit also.
For willful misconduct, the law sets the bar high for the employer. The employer must prove that you were aware of a rule or policy of the employer and deliberately violated it. In most cases, the employer must establish the employee’s awareness through evidence of a written rule or policy and written acknowledgement of receipt of the rule or policy from the employee.
I can best explain the willful misconduct standard with an example. I represented a casino employee who was in charge of supervising dealers at six card tables. One evening, a dealer improperly paid out to bettors on several hands resulting in the casino losing thousands of dollars. The casino fired both the dealer and the supervisor. Curiously, the casino contested only the supervisor’s claim for unemployment benefits on grounds of willful misconduct. The initial written Notice of Determination denied benefits. The client sought my help and we appealed. At the hearing, the casino produced evidence of a written policy my client had received requiring table supervisors to assure correct payouts. However, the casino did not produce evidence that my client deliberately violated the rule. There was no evidence of collusion between my client, the dealer or the bettor. My client had simply become distracted and missed the dealer’s error. The unemployment referee found in favor of my client and reinstated her benefits.
If you receive a Notice of Determination informing you your benefits have been denied, once again, you must appeal by the date on the notice or you may lose your unemployment benefits. Timely adherence to filing deadlines is essential.
Filing an appeal is simple. A one-page appeal form will be included with the Notice of Financial Determination and/or Notice of Determination. You can handwrite “I appeal,” and fax or mail it to the address on the notice. No legal language or even an explanation of why you disagree with the Notice of Determination is required. The employer may also appeal if you are granted benefits. Once an appeal is filed, a date for a hearing at the local unemployment office will be scheduled and notice mailed to the parties.
You are not required to have an attorney represent you at an appeal hearing. However, with several thousand dollars of your unemployment benefits at stake, ask yourself if you feel lucky enough to represent yourself on your own? Will you know the right evidence to present? Will you know what questions to ask the employer’s witnesses or when to object to the employer’s questions and evidence? Chances are you won’t. You may overlook a critical piece of evidence or a critical issue that could be the difference between winning and losing the appeal. Once the hearing is over, the standard for overturning the referee’s decision on a further appeal is whether the referee committed an error of law or whether the decision went against the weight of the evidence. You don’t get a do-over just because you would do things differently a second time.
If you are still determined to go it alone, identify the evidence that will show you did not quit or that your reasons for doing so were necessitous and compelling. Write it down. Don’t expect to win simply by showing up at the hearing and telling your side of the story. Know the issues on your appeal, whether a voluntary quit or willful misconduct, and be prepared to present documents and testimony of other witnesses who will support you. If the employer contends you committed willful misconduct, ask them to produce the written rule or policy you violated and prove that you received it. Ask what evidence do they have that shows you acted deliberately? Evidence that you made an error is not enough.
If you are unemployed and unjustly denied your unemployment benefits, don’t let your safety net be cut out from underneath you by failing to follow the steps outlined in this primer. If you have any questions, please call me at (215) 493-8287 or email me at [email protected].