Unemployment Compensation: If at First You Don't Succeed, Try, Try Again

Losing a job is one of life's biggest disruptions. It can throw otherwise hard-driving, ambitious people off their game, to the point of rolling over at the first rejection in their bid for unemployment compensation.

Attorney Keith E. Kendall, who focuses on Pennsylvania unemployment compensation law for Scaringi Law, helps these clients get back in the game. It all begins with the seemingly simple decision to appeal an initial denial of their unemployment compensation claim.

"I've consulted with hundreds of people about their claims for unemployment compensation benefits, but I'm still surprised by the number of people who don't pursue an appeal of a first-step denial of their claims or who ask whether they should appeal,'' says Kendall. "My answer to this question is always the same: 'Of course you should appeal!' "

Indeed, Kendall says, an unemployment compensation appeal and the resulting hearing represent a claimant's best chance of receiving the benefits he is entitled to as he pieces together his professional life.

An employer's word often carries the day at the initial stage of a UC claim

The first step in the claims process is called the determination stage. This is when an employer is notified that a former employee has filed a claim. The employer is given an opportunity to provide input regarding the reason a claimant is "unemployed." If an employer represents that the claimant has been terminated for cause, or has voluntarily resigned or abandoned his or her employment, the UC initial claims examiner likely will deny the claim on this information alone.

As Kendall explains, this action is translated into "UC-speak." The reasons for the separation from employment then become either "willful misconduct" (the former) or "voluntary quit" (the latter). These are the two primary grounds for denial of UC claims.

Yet, much nuance is lost in the translation by claims examiners who deny UC claims based on an employer's input. There are significant exceptions to the general rule that separation from employment due to "willful misconduct" or a "voluntary quit" disqualifies a claimant from receiving UC benefits.

Thus an appeal is not only a good idea, but a necessary step in the claims process.

It is often only through the appeal process, during a hearing before a UC referee, that the former employee's side can be effectively presented and successfully argued, resulting in the ultimate grant of UC benefits.

A UC hearing takes a closer look at the facts behind a UC claim denial

First, let's consider "willful misconduct" as the alleged reason for an initial claim denial. There are exceptions, or circumstances, applicable to the conduct of either the employer or employee that can lead to a finding that the alleged misconduct isn't "willful'' at all, Kendall says.

On the employer's side, one exception - sometimes referred to as "condonation" - might apply in cases in which an employee is fired for violating a work rule, such as a requirement that all employees be at their work stations no later than five minutes after the hour. The initial determination might merely find that the employer does have such a work rule, hence the UC claim is denied.

But that initial denial can be overturned if, during the appeal hearing, the employee can provide documentary and testimonial evidence showing the employer routinely condones late arrivals and rarely, if ever, terminates employees for violating the rule. Such condonation on the employer's part can be found to excuse actions that might otherwise be considered "willful misconduct.''

In other words, an employer can't all of a sudden change the unwritten rules and fire an employee for conduct that the employer has long condoned in the workplace.

In addition, an employee's alleged "willful misconduct" can be excused by showing during the appeal hearing that the conduct was either not willful or not really misconduct at all.

For example, in the same scenario of being fired for arriving late to work, if the employee can demonstrate that it was not his or her fault for being late - such as being held up for some time by a highway accident - the perceived violation of the rule can be excused for the purpose of successfully claiming and receiving UC benefits.

Though an employer can fire an "at will" employee for virtually any reason, UC claims cannot be denied for acts or omissions that are not really the employee's fault.

When an employee has a good reason to walk off the job

Now let's look at exceptions to the other primary grounds for a UC claim denial, the "voluntary quit" scenario. Here, an employee might resign or abandon his or her employment, but with very good reason. If the reasons for "voluntarily" leaving one's employment are good enough - "necessitous compelling," under UC law - then this potentially disqualifying separation from employment will be excused, and benefits awarded.

A common example of a situation in which an employee leaves his or her employment with good cause is the result of sexual harassment. In this scenario, the employee's separation from employment is considered by UC law to have been forced, and therefore not "voluntary" at all. In such a scenario - once again proven with documentary and/or testimonial evidence at a UC appeal hearing - benefits can and should be granted.

"Fault'' matters

A common thread running through the UC claim process is the concept of "fault." UC law was created as a fault-based entitlement program.

This means the decision on UC benefits is, very generally, based on a determination of whether an employee was at fault in causing his unemployment. If so, benefits will generally be denied. If not - based on one of the exceptions discussed (and others too numerous to mention here) - benefits might be granted.

Yet it often requires a hearing to explore those exceptions and get to the bottom of who is at fault. This is why Kendall is always ready to assist his clients in challenging an initial denial of UC benefits.

"The hearing process provides the fairest and most complete way to prove entitlement, but it's not available at the initial determination stage of the claim process," he says.

Should the hearing result in a denial of benefits, there is yet another layer in the appeal process that allows for an administrative review by the Unemployment Compensation Board of Review (UCBR). There is no cost for a UCBR appeal of the decision reached after a hearing. And the UCBR conducts an independent review of the hearing process, evaluating whether the hearing was fair and the decision reached was legally justified.

From the UCBR decision, yet another appeal is available to the Commonwealth Court of Pennsylvania, an intermediate appellate court. Kendall has taken UC cases to every level and layer of appeal, with success. That is why his motto is "Try, try again" when it comes to unemployment compensation claims.

"I have had success at each level in the process,'' Kendall says. "I urge any UC claimant to exhaust all avenues of appeal before giving up on his/her claim."

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