PA Unemployment Compensation

jamac · March 2005

[font color="red" size="3"]What is everyone's take and position on this new ruling concerning the requirement to retain an attorney to represent us at UC hearings? Do I need to go to law school or will this be reversed? Does anyone have any inside scope on this topic?[/font]

ray a · March 2005

Jamac, just exactly what is this new ruling? Living on the PA / NY border, I hire a significant number of PA residents and occasionally have to deal with PA UI.

jamac · March 2005

Pennsylvania Employment Law Letter
A monthly survey of employment law developments in Pennsylvania

James F. Kilcur, Editor

Saul Ewing LLP

Vol. 15, No. 6
March 2005

UNEMPLOYMENT COMPENSATION
You need a lawyer

The Commonwealth Court has rendered a decision that will have a significant impact on how you handle unemployment compensation hearings in Pennsylvania. Specifically, the court found that companies defending unemployment compensation claims must be represented by an attorney at the referee hearing. That requirement is a substantial change in how many of you deal with unemployment compensation hearings.

Background

Lani Harkness was employed by Macy's department store as a beauty adviser for Estée Lauder products. She was terminated after she got into a verbal dispute with a customer. She complained that the customer called her a "bitch" and was offensive and confrontational toward her. She responded by telling the customer "to get your fat ass out of here." Because of that comment and her failure to obtain assistance with the unruly customer from a supervisor or manager, she was fired.

Harkness applied for unemployment compensation and was denied benefits by an Unemployment Compensation Service Center. She appealed that decision to the referee. Macy's was represented at the referee hearing by William Forrest, an employee of Talx UC Express, a company that represents employers in unemployment compensation cases. Forrest isn't an attorney, and Harkness objected to his participation at the hearing on that basis. The referee upheld the denial of benefits, and the former employee appealed that decision to the Commonwealth Court.

Court's analysis

The court focused on whether Forrest was engaged in the practice of law when he appeared at the referee hearing. In its view, he acted as an advocate to further Macy's position that Harkness was discharged for willful misconduct. He conducted the cross-examination, made decisions about evidentiary matters, and gave a closing argument. As a result, the court found that he was engaged in the unauthorized practice of law.

Although the court recognized that former employees seeking unemployment compensation may be represented by counsel or another duly authorized agent, that right doesn't apply to companies opposing unemployment compensation claims. Employers, according to the court, need to be represented by an attorney. The court based that distinction on specific statutory language in the Unemployment Compensation Act.

Bottom line

The Commonwealth Court's decision will require a significant change in how unemployment compensation cases are handled in Pennsylvania. Up to this point, companies have either used personnel from their human resources department or hired consultants to represent them at the referee hearings. This decision requires you to retain an attorney to represent you at the hearing. As a result, you must begin to make plans for how you will meet the court's mandate.

You can catch up on the latest court cases involving unemployment compensation in the subscribers' area of [url]www.HRhero.com[/url], the website for Pennsylvania Employment Law Letter. Just log in and use the HR Answer Engine to search for articles from our 51 Employment Law Letters. Need help? Call customer service at (800) 274-6774.
Copyright 2005 M. Lee Smith Publishers LLC
PENNSYLVANIA EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Pennsylvania employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Pennsylvania does not certify specialists in labor and employment law, and we do not claim certification in this area.

Crout · March 2005

You don't have to be an attorney to attend a UC hearing for your company, but ONLY an attorney retained by the employer has the right to cross-examine witnesses or make a closing statement. The ruling is based on the argument that engaging in cross-examinations is a practice of law, which can only be done by an attorney. This ridiculous ruling by the Commonwealth Court solely impacts employers. An employee...attorney or not...still has the right to cross-examine and make a closing statement. The PA UC Board has appealed this decision to the State Supreme Court, and there is legislation now forming in both houses of the legislature. My view is that there are far too many holes in the Commonwealth Court's logic to sustain this ruling. To begin with, most of the Referee's who conduct the hearings are NOT attorneys, and then there is the issue of equal protection for companies who may not be able to afford an attorney for every UC hearing. I think this will be a problem in the short-term only.

mushroomHR · March 2005

[font size="1" color="#FF0000"]LAST EDITED ON 03-01-05 AT 09:52AM (CST)[/font][br][br]They tried to do this in Ohio as well stating that a TPA is not an attorney and should not be representing employers at hearings. The decision was overturned and we can now go back to having representation by our TPA rather than hiring an attorney. It would cost a fortune for us to retain counsel for all the hearings we have. Some law firm probably came up with this idea just to make more money. Our TPA is quite capable to represent us in hearings.

Shadowfax · March 2005

Is there not a distinction here between represented by someone at/from the Co as opposed to being represented by a third party? If that is the difference I can understand the decision a bit. The same is true of individuals, you can represent yourself in court, but if you hire a 3rd party, then he/she must be a licensed atty.

Don D · March 2005

Does this also mean that the claimant must also be an attorney or either bring one along? In most states, if not all, the claimant has the right to 'cross examine' the employer and his witnesses. Somebody's brain was on leave when this one was decided. Are we sure PA is not in the same supreme court district as California?

Seems to me all in the hell PA needed to do is change the language from 'cross examine' to 'question' and move on to something important.

Crout · March 2005

This case was decided on the Commonwealth Court level. Believe it or not, those idiots said that employees still retain the right to cross-examine while employers do not, UNLESS the employer is represented by an attorney. The big problem for me is that most of the UC Referees in Philly are notoriously pro-employee. Just last week I sat in a hearing while the ex-employee spun lie after lie, and all I could do was sit there quietly hoping that the Referee would direct a few logical questions my way so I could refute the statements, and more importantly, introduce evidence that I had in my briefcase. Guess what? While the (obviously) California born and bred Referee did ask me a few things, I never got to refute the ex-employees statements, and so they will be taken as truth. If we have to rely on the so-called impartiality of the Referees in this town to conduct fair hearings we're in big trouble. I think the PA State Supreme Court will overturn this ruling in due course.

jamac · March 2005

[font color="red" size="2"] From my understanding, it does not matter if you work and represent the employer or if your from a third party. The bottom line is cross examining and closing statements are to the attorneys and/or ex-employee trying the gain benefits.[/font]

Don D · March 2005

A patently unfair and unjust system that will not hold up. Be patient.

AJ SPHR · March 2005

Sorry for the hijack, but how come the font color for your posts is red?x:-/

jamac · March 2005

[font color="red" size="2"]No real reason, am I violating some sort of code that I should be aware of? I am new to this forum, let me know. ...[/font]

AJ SPHR · March 2005

Oh no .. there's no code! I'm just jealous that you're that sophisticated with your posting techniques! I feel pretty thrilled when I'm able to use the emotion icons, but you've moved us to a new level!xclap

PA Unemployment Compensation

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