Recently, we Posted about the impact on "Confessions" at work and how they can impact upon your future rights to severance, claims for wrongful discharge and Unemployment Compensation benefits.
In a nutshell, we posited that "confessing" to wrongdoing at work will seldom help you retain your employment, but will often nullify your chances to sue for wrongful discharge or to recover Unemployment benefits. That is so because your statements to your employer may be used against you in any future legal proceeding.
Assuming that you have avoided making such a confession to your employer, you need to be sure to avoid making a damning admission to the Unemployment Service Center during the process of perfecting your claim for Unemployment Compensation benefits.
Why? Because it is highly likely that any such admission will be used against you at a subsequent Unemployment Compensation Hearing.
What is an Admission?
An admission is an affirmative statement of a fact, or the denial of a fact. Here are some examples:
* "Yes, I violated a work rule."
* "Yes, I was late."
* "Yes, I told my co-employee Suzy to go fly a kite."
Assume, for purposes of this Post, that all of these acts constitute "willful misconduct" under Pennsylvania Unemployment law.
There is No Justification for Willful Misconduct in the Eyes of Unemployment
In the classic situation, there admissions are often immediately followed by an explanation, such as:
* "But everyone violated the rule."
* "Joe was late too, and he wasn't fired."
* "But Suzy told me to go jump in a lake."
The bottom line is, the fact that others did the same bad act, or provoked your misconduct, does not change the fact that you engaged in misconduct. Think of it this way - two wrongs do not make a right.
You are the one "on trial," not "everyone," "Joe," or "Suzy." And, if you made such an admission to the Service Center during your application for benefits, you can rest assured that it will be used against you at the Hearing, and you will most assuredly lose.
Understand the Rules of Hearsay
The secret of winning Unemployment Hearings is often understanding and applying the rules of Hearsay. Remember, the employer cannot use statements of people who are not in the the Hearing to prove their case against you (assuming appropriate objections are raised at the right time). Since many employers do not bring first-hand witnesses to your alleged misconduct to the Hearing, they will not be able to satisfy their burden of proving you engaged in misconduct at the Hearing if timely Hearsay objections are raised. Unless....
They have a statement from you made either to them or to the Service Center wherein you admitted to misconduct....Statements that you make are always admissible in any legal proceeding.
How to Avoid Making an Admission to Unemployment
The best way is to avoid talking with the Service Center when your application is processing. Also, avoid making any admissions on any Questionnaires you receive from Unemployment while your application is being processed.
This can be a tricky thing but, if in fact you believe you may have engaged in misconduct, your best bet is to stay silent, and wait until the Unemployment Hearing at which time, with the right strategy, you can win those essential benefits. "staying silent" may seem counterintuitive, but it is a far better alternative to lying or making a confession.
Understand: * You do not have to talk to the SC;
* You do not have to complete the Questionnaire;
* It is better to say nothing than to lie or make a damaging admission;
* Even if the SC rules against you, you will have a right to a Hearing;
* You want benefits now, but a lie or admission could result not only in you
ultimately losing your claim at a Hearing, but also in a finding that you committed
a fraud on Unemployment, and thus received a "fraud overpayment."
John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.
Click Here if you have questions about any aspect of employment law, from wrongful termination, to wage and overtime claims, to discrimination and retaliation laws, to Family and Medical Leave…
Click Here if you have questions about any aspect of Pennsylvania Unemployment Law, from willful misconduct, to voluntary quit, to Referee Hearings, to severance issues…
Click Here to e-mail John directly.
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