Philadelphia Area Lawyer's Quick Answers to the Most Common Pennsylvania Unemployment Questions

by joe browm on Aug. 15, 2017

Employment 

Summary: Philadelphia Area Lawyer's Quick Answers to the Most Common Pennsylvania Unemployment Questions

Based upon my experience, here are the most common Questions I get about Pennsylvania unemployment benefits, and some (hopefully clear) Answers (click on any Links to jump):

1)  If I am About to get Fired and I Quit my Job Instead, is that Considered a Resignation or a Termination for Purposes of Unemployment in Pennsylvania? 

Unless Your Termination is IMMINENT, 
Quitting Can Make Winning Benefits Difficult

Reason Question is Important:   It is much easier to win benefits when you have been fired than it is when you have quit.

Quick Answer:  A "quit" will be deemed a "fire" only if you are told that you will be fired immediately unless you resign first.

So....

If you are told that if you do not resign immediately then you are going to be fired that day, then your resignation will, for unemployment purposes, be deemed a termination (and not a quit). That is a good thing.

If you are told that it is extremely likely that you are going to be fired at some point in the very near future, and are then given a chance to resign either immediately, or after you think it over for a day or two, then your resignation will, for unemployment purposes, be deemed a quit. That is a bad thing.

Suggestion:  Unless you are certain that you can prove that your resignation was submitted in lieu of a certain and immediate termination, hang in there and let them fire you.

More Quit Questions?  Check Out John's Comprehensive Video Discussing Many Common Quit Scenarios and How They Impact on Your Right to Unemployment Benefits


2)  If I take a job as an independent contractor while on Pennsylvania Unemployment, do I have to report that I have taken the job to unemployment even if I have not been paid yet?

Quick Answer:  Yes.  On the bi-weekly application you are asked if you have "worked" in the past two weeks.  "Work" means doing something with an expectation of payment, or at least a hope of payment (if you take a sales job).  "Work" does NOT mean doing and something and getting paid.  Also, if you are working as an independent contractor (i.e. getting paid on a 1099 basis as opposed to a W-2 basis), you are employed, you are working.  Click Here to read the "legal test" utilized to determine if you are in fact an independent contractor under section 402(h) of the Pennsylvania Unemployment law.

2A)  If I am working part-time as an independent contractor in Pennsylvania, will my unemployment benefits be cut off?  

Quick Answer:  Yes, if Pennsylvania Unemployment finds out through your self-reporting or otherwise that you are working as an independent contractor while receiving benefits, you will immediately be cut off from receiving benefits even if you are only working part-time hours.  That is because independent contractors are deemed to be self-employed, and people that are self-employed are deemed to be running their own business on a full-time basis, and are therefore deemed to be longer available for work, and therefore are disqualified from receiving benefits.

You may want to read the above paragraph twice; this issue causes a lot of problems for many people.  The reasons for this rule are complicated.  However, what you need to know is: Unemployment uses this rule all of the time to disqualify people from receiving benefits.

And, if you received benefits while working on a 1099 basis and Unemployment finds out about it after the fact, you will be hit with an overpayment, and that can be very bad.

IC or Employee?
3)  If I take a job as an independent contractor while on Pennsylvania Unemployment and report that employment to Unemployment, will my benefits stop?

Quick Answer:  In all likelihood, yes. Then you will have to file an appeal and you will get a Hearing before an Unemployment Referee.  At that hearing, your benefits will be reinstated if you can prove that you are in fact an employee.  In other words, the mere fact that you are designated as an independent contractor does not make it so.  We win many Unemployment Hearings wherein we prove that our client in fact was was misclassified as an independent contractor, and is therefore entitled to continuing benefits or not liable for an overpayment.

4)  If I sign a contract saying I am an independent contractor, does that mean Pennsylvania Unemployment will automatically determine that I am an independent contractor?

Quick Answer:  The Pennsylvania Service Center will usually find that you are an independent contractor if you signed a contract saying as much.  However, we win many, many cases before Unemployment Referees holding that people are not independent contractors even though they signed a contract saying that they were.  As I say, you can call a Chevy a Mercedes, but it's still a Chevy.

5)  If I am fired for poor performance, will I be able to collect unemployment in Pennsylvania?

Quick Answer:  Yes.  Poor performance is not willful misconduct under section 402(e) of the Pennsylvania Unemployment law.  Be careful, however.  Employers know this and often try to fabricate reasons for your termination at the Unemployment Hearing in order to try and convince the Referee that you were fired for willful misconduct.

6)  What Happens at a Pennsylvania Unemployment Hearing Before  Referee?

Quick Answer:  Usually, they take place in a 15 x 15 room.  You (and your witnesses and counsel) on one side of the table, the employer (and its witnesses and counsel on the other side).  The Referee sits at the head of the table.  Everyone is sworn in.  Exhibits found within the unemployment file are marked as evidence, and each side gets a chance to object to any exhibit.  If the issue is willful misconduct, the employer provides testimony and evidence first as to why you were fired.  You get to object to any exhibits and testimony, and then cross-examine the other side.  Then it is your turn to testify, introduce exhibits and be subject to cross-examination. Closing arguments are held, and case is closed.  Decision usually follows within 1-4 weeks (no precise timetable exists).  Click Here for a more complete discussion of how to prepare for an Unemployment Hearing.

7) Why Do Employers Fight Unemployment Claims in PA?
It's all about the Benjamins
Quick Answer:  Primarily, to save money.  Large employers (say,with more than 100,000 employees) have to pay your claim directly out of their pocket.  So, if you are getting $573 per week in unemployment, it comes directly out of the funds of a large company.  Smaller companies have to pay an unemployment tax every time they make payroll.  When someone is successful in obtaining unemployment benefits, the amount taxed goes up.  The tax is not small, either.  A company with 5 or 6 employees who has had 2 employees obtain unemployment benefits over the past year or so may pay hundreds of dollars per month in unemployment taxes.  

If it ended like this, they may fight
your claim
Secondarily, companies often fight unemployment because they are mad at the employee, and angry people will fight hard for a "cause" they believe in.  Either way, you need to be prepared for a fierce (and sometimes dishonest) defense from your former employer in any Unemployment Hearing,




8)  How Long Does it Take to Get Pennsylvania Unemployment Benefits?

Quick Answer:  Anywhere from 2 weeks (if you have been laid off or are subject to a reduction in force) to 45 days or more (if you quit or were fired).  The Unemployment Compensation Service Center is not subject to any time limits; there is no law or regulation that requires them to decide your claim within any specific time frame.

9)  I Received a Notice of Financial Determination from Pennsylvania Unemployment, Does That Mean I Have Been Approved for Benefits?

Quick Answer:  No.  EVERYONE who files for unemployment automatically gets a Notice of Financial Determination, no matter why their employment ended.  All that this form does is tell you how much in benefits you will receive if you actually do qualify for unemployment.

10)  I am Receiving Unemployment Benefits from Pennsylvania, Does That Mean My Claim Has Been Approved?

Quick Answer:  Not necessarily.  Sometimes benefits are granted, and that decision is later changed or reversed.  Here are some of the common reasons it happens: 

a)  you state that you were laid off, let go for lack of work or victim of a reduction in force.  When you do this, benefits are paid immediately.  However, as discussed below, if the employer disagrees with why you said you were let go, you may later see your benefits stopped, or may be required to go to a Hearing before an Unemployment Referee to keep them; or, 

b) the employer failed to initially respond to request for unemployment for information.  In these type cases, you apply and say, for example, that you were let go for poor performance.  As discussed below, the employer is contacted by the Unemployment Service Center and asked to confirm or deny the facts you stated in your application.  The employer initially fails to respond, so benefits are then issued to you.  However, there is no hard and fast deadline for an employer response.  That is why, sometimes months later, when you think you are "in the clear" you get a Notice of Determination either granting or denying you benefits.  Sometimes, if the NOD is against you, your benefits will stop.  

The Notice of Determination is the key document in any unemployment dispute.  

No matter what, either you or the employer have 15 days to appeal from the NOD, and you may still have to win at a Hearing  before an Unemployment Referee in order to get your benefits reinstated (if they suddenly stop) or to have them continued.  If you or the employer miss that 15 day deadline, the determination of the Service Center found within the Notice of Determination is the final word on the issue.  Late appeals are almost never allowed.  If an appeal resulting in a Hearing before a Referee is filed, the the decision of the Service Center found within the Notice of Determination loses all of its relevance and effect.

11)  How Does the Pennsylvania Unemployment Service Center Decide if I Get  Benefits?

Quick Answer:  Upon your application, the Service Center notifies your employer that you have filed a claim, and advises the employer as to what you said was the reason for your separation from employment on your application (i.e. lay off, reduction in force, termination, quit, etc.)  If you stated your were laid off or subject to a reduction in force, then you will get benefits without delay virtually as soon as you apply.  [CAUTION:  That does not mean your claim cannot later be denied!!! See below]  If you said you quit or were terminated, you will likely not receive any benefits until the Service Center has finished its investigation, and only if it rules in your favor.

CAUTION:  Many folks who are worried about their finances state in their application that they were laid off or let go for lack of work, when in fact they were terminated or quit.  They then cross their fingers and hope that Unemployment won't investigate their application or that their former employer won't "fight their claim" This is a bad idea.  Unemployment investigates every claim, and employers almost always state the reasons for the separation in response.  Misstating why you are no longer employed on your application can lead to serious problems. I strongly urge against it.

Click Here to read more on the Pennsylvania Unemployment Application process.  

If, after having been advised by the Service Center that you have filed for unemployment, the employer reports back to Unemployment that you were laid off, let go for lack of work or victim of a reduction in force, you will hear nothing further from the Service Center and your benefits will be paid.  If, however, the employer disputes the reason you gave for your separation, or if it asserts that you were fired because you did something bad (willful misconduct) or quit without good reason, the Service Center typically engages in a further investigation.  This investigation typically consists of sending out a  "Claimant Questionnaire" and an "Employer Questionnaire."  Once this is done, the Service Center  issues a "Notice of Determination" setting forth their findings.

So, the possibilities look something like this:

a.  You state you were laid off, let go for lack of work or victim of a reduction in force; benefits will be paid immediately to you but,  if after the Service Center investigates your claim, it determines that you quit without good reason or were fired for willful misconduct, your benefits will be stopped and you will have to win them back at a Referee Hearing.  You may be liable for an overpayment, with penalty, if you lose the Hearing and it is determined you lied on your initial application.  If you win the Hearing, all is well;

b.  You state you quit, but for good reason.  You will not receive any benefits unless and until the Service Center determines whether your reason was good enough under the law to make you eligible for benefits.  If the Notice of Determination ("NOD") is in your favor, you will be awarded benefits and keep them unless the employer appeals, and you later lose at the Referee Hearing.  If the NOD  is against you, then you must appeal and win the Referee Hearing to get benefits, which will be awarded retroactively if you win (Oh, happy day!).

c.  You state you were terminated, and explain why.  You will not receive any benefits unless and until the Service Center determines whether or not you engaged in willful misconduct. If the Notice of Determination ("NOD") is in your favor, you will be awarded benefits and keep them unless the employer appeals, and you later lose at the Referee Hearing. If the NOD is against you, then you must appeal and win the Referee Hearing to get benefits, which will be awarded retroactively if you win. 

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