Common Employment Law Questions in Pennsylvania

Pennsylvania Employment Lawyer With Offices in Paoli, Exton, King of Prussia, Plymouth Meeting, Radnor and Philadelphia Gives Free Consultations for Pennsylvania

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MY BOSS TOLD ME IF I DON’T QUIT I WILL BE FIRED – WHAT SHOULD I DO IN PHILADELPHIA?

Pennsylvania employers often try this tactic to avoid paying unemployment. I think it is rarely appropriate to quit when faced with termination. In general, an employer that gives an employee that choice is trying to gain a leg up on an unemployment claim. I counsel to let them fire you, and then deal with the separation honestly in future interviews. After all, whether you quit or are fired, an interviewer is going to ask for additional information about your last job, and you are going to have to honestly explain the circumstances. I suppose, though, that some of us feel that if we state truthfully that we resigned, we can fudge the details when asked why. In any event, if one is going to resign from a job, it is wise to state in an e-mail that you are resigning because you been told you will be fired. Then, you can use that e-mail at any future unemployment hearing. Most companies do not give out information on why a separation came about, anyway, so it will be up to you in the interview to explain the separation in any event. Copy and paste this ling to learn more.

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I HAVE NOT BEEN PAID FOR OVERTIME AND ALL OF THE HOURS THAT I HAVE WORKED, WHAT CAN I DO IN WEST CHESTER?

Pennsylvania employers are required to pay employees for all hours worked. The failure to do so may violated the Fair Labor Standards Act if the unpaid hours are overtime, or if the total paid to the employee divided by the number of hours worked falls under the minimum wage. State laws in nearly every state also provide protection for employees who are not paid for time they worked, SUCH AS Pennsylvania’s Wage Payment and Collection Law. You may want to put your request for unpaid wages in writing, maybe via e-mail (which is the new "traditional" form of written communication). Doing so may provide you some protection if you are suddenly fired. If a group of people have not been paid, it gives you even more power if you assert a complaint on their behalf as well. (a generic complaint, you need not be specific). Copy and paste this link to learn more.

DO I HAVE A SEXUAL HARASSMENT CASE IN KING OF PRUSSIA?

Pennsylvania employers must act in accord with Title VII. In order to have a sexual-harassment claim with significant value, one needs to show that one suffered adverse employment action (the motion, failure to promote, termination, suspension) because one refused sexual advances, or that the employee suffered an adverse employment action that was a retaliatory response to a complaint made to management concerning sexual-harassment.

Here, the gist of your e-mail suggests that your termination did not come about because of your refusal to relent to your boss's sexual advances, or to a complaint you made about sexual-harassment , but rather had to do with some other issue.

Thus, while it appears that you did suffer a hostile work environment, and therefore you may want to file with the EEOC, it does not appear that you suffered any adverse employment action related to the sexual-harassment. Therefore, if you do have a sexual-harassment case, at least based upon what you stated in your question, it does not appear to be a case with significant value. Copy and paste this link to learn more.

Pennsylvania Employment Discrimination Lawyer Serving Coatesville, Pottstown, Norristown, East Norriton, Malvern, Paoli, Downingtown, Media, Radnor, Newtown Square and Philadelphia Areas

Call us today and we will discuss your matter at no cost to you.

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PA EMPLOYMENT LAWYER ANSWERS COMMONLY ASKED QUESTIONS

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Here are some common employment-related questions and answers [Note:  Use the Search Key to find information on almost any topic affecting Pennsylvania employees]:

I WAS NOT GIVEN BENEFITS I WAS PROMISED IN PHILADELPHIA!

If you were promised benefits after 90 days and you have not received them, then you would have a claim for breach of contract. Although you are employed "at will," and thus can be fired for any reason (unless the firing violates state or federal laws, Click Here to learn more), as long as you are employed your employer must honor its promises to pay you and to provide benefits it promised. You may want to consider making a demand upon your employer for the promised benefits, but you should speak with an attorney first on how to frame the demand, and also the pros and cons of making the demand.

CAN I BE FIRED BECAUSE I AM PREGNANT IN MALVERN?

Firing you because you are pregnant is illegal under both state and federal law.

CAN MY EMPLOYER CHANGE THE REASON FOR WHY IT FIRED ME IN NORRISTOWN?

This is a classic example of an employer trying to avoid paying unemployment benefits to a discharged employee. I have little doubt that the employer will be fighting any claim for unemployment that you may file on the grounds that you were terminated for willful misconduct. That is because if you are laid off due to lack of work,or terminated for ordinary "poor performance," the employer cannot successfully contest your claim for unemployment benefits in Pennsylvania.

CAN MY EMPLOYER WITHHOLD MY COMMISSIONS IN WEST CHESTER?

No, it is illegal. Employers are required to pay commissions when due - by the following pay period. If the employer is not paying commissions on a timely basis, the company and the people who are responsible for withholding commissions are responsible, and may have to pay penalties and your attorneys fees. See Pennsylvania’s Wage Payment and Collection Law. Unfortunately, though, Pennsylvania does not allow a wrongful discharge claim, or a retaliation claim if you will, if you are fired for complaining about this practice. However, if you complain on behalf of everyone, that could be deemed collective action under the National Labor Relations Act, which could protect you from retaliatory discharge. Best to talk to an attorney about this practice. Perhaps a letter on your behalf (and on behalf of your co-employees as well) will do the trick....

AM I ENTITLED TO BE PAID COMMISSIONS THAT CAME IN AFTER I WAS FIRED IN MEDIA?

This is a common question. Usually, you have to be employed when payment is received to be entitled to the commission. However, if the company fires you on, say, the day before payment arrives, and it knows payment is about to arrive and times it is firing to avoid paying you the commission, then you may have a case.

DOES MY EMPLOYER HAVE TO GIVE ME TWO 15 MINUTE BREAKS ON AN 8 HOUR SHIFT IN PLYMOUTH MEETING?

Pennsylvania employers do not have to provide break periods or lunch breaks to employees who are working eight hour shifts. Obviously, it is very bad management to not provide employees with such breaks, but we do see this from time to time. However, if you are working eight hours without a break, you should make sure that you were being paid for eight hours. We see a lot of companies with built in "7 1/2 hour shifts," as if they were providing their employees with either lunch breaks or break times, but in fact they really are not. Failing to pay an employee for each minute that he or she works during the day would be a violation of Pennsylvania state law, and could also implicate federal overtime laws.

DOES MY EMPLOYER HAVE TO GIVE ME A LUNCH BREAK WHEN I WORK AN 8 HOUR SHIFT IN DOWNINGTOWN?

No, unfortunately neither state nor federal law require lunch breaks or break periods. However, sometimes we see companies that do not allow their employees to take lunch, but nevertheless dock them each day for a half-hour as if they had taken lunch. This is illegal.  In other words, if you worked eight hours, you must be paid for eight hours.  And, if the amount of time you actually worked exceeds 40 hours (because in docking you for 2.5 hours you actually worked, the employer has you working 40 hours when you actually worked 42.5), then you may be entitled to overtime payments.

MY BOSS TOLD ME IF I DON’T QUIT I WILL BE FIRED IN LANSDALE – WHAT SHOULD I DO?

I do not think it is ever appropriate to quit when faced with termination. In general, an employer that gives an employee that choice is trying to gain a leg up on an unemployment claim. I counsel to let them fire you, and then deal with the separation honestly in future interviews. After all, whether you quit or are fired, an interviewer is going to ask for additional information, and you are going to have to honestly explain the circumstances. Most companies do not give out information on why a separation came about, anyway, so it will be up to you in the interview to explain the separation in any event.

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Medical Leave Rights Lawyer in Pennsylvania with Offices in Paoli, Plymouth Meeting, Exton, Radnor and Philadelphia

Pennsylvania Disability Lawyer Serving Coatesville, Pottstown, Norristown, East Norriton, Malvern, Paoli, Downingtown, Media, Radnor, Newtown Square and Philadelphia Areas

Medical Leave, Family Leave, Disability Leave? We are very experienced lawyers who help clients with these issues every day. If you live in Chester, Delaware, Montgomery or Bucks County, and have questions about your leave rights, call us and we can help.

Call 610-647-5027, e-mail me directly or send an e-mail inquiry via the "Fill Out My Form" box to the upper right of this page. We will respond promptly with an analysis of your situation, and discuss potential options going forward.

Please visit our Website for additional information about our Pennsylvania employment law practice.

Recently, the federal court sitting in Philadelphia issued two important Family and Medical Leave Act decisions.

On February 24, 2010, Judge O'Neill issued a decision in Narodetsky v. Cardone Industries, Inc., wherein he determined that there could be individual liability under the FMLA. Judge O'Neill found that each of the named individual defendants were proper parties because it was alleged that 1) each participated in a search of the employee's computer with the goal of finding a reason to justify his termination after he had sought FMLA Leave; 2) each one was alleged to have the power to fire plaintiff; and, 3) each played a role in the decision to fire plaintiff. The opinion is notable because a number of district courts located in other jurisdictions have held in similar circumstances that there cannot be individual liability under the Family and Medical Leave Act.

On March 1, 2010, Judge Stengel issued a decision in Barron v. Quest Diagnostics, Inc. (a case where the plaintiff was represented by the Gallagher Law Group) denying defendant's motion for summary judgment. There, the plaintiff had a substantial record of tardiness and absenteeism, including multiple warnings and a final warnings. The company alleged that a decision to terminate the plaintiff was made before she went out on FMLA Leave. However, citing inconsistencies from the unemployment hearing transcript between the parties, the court ruled that there was an issue of fact as to when the decision was made, and by whom. The opinion is notable because of the utilization of the unemployment transcript, and also because the court properly determined that a jury could conclude that the exercise by plaintiff of her FMLA right "was the motivating factor behind the ultimate decision to terminate her."

Philadelphia Labor Lawyer With Offices in Paoli, Exton, King of Prussia, Plymouth Meeting, Radnor and Philadelphia Gives Free Consultations for Pennsylvania Employment Claims

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Obama Signs COBRA Extension

Unemployment Appeal Lawyer With Offices in Paoli, Exton, King of Prussia, Plymouth Meeting, Radnor and Philadelphia Gives Free Consultations for Pennsylvania Unemployment Claims

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President Obama has signed the Temporary Extension Act of 2010 (H.R. 4691), approving a stopgap, 31-day extension of federal subsidies of COBRA health care premiums as allowed under The American Recovery and Reinvestment Act of 2009 (ARRA).

ARRA initially allowed employees terminated between September 1, 2008 and February 28, 2010 to be eligible for a 65 percent COBRA subsidy.

Now, the COBRA premium subsidy is extended from March 1, 2010 through March 31, 2010. Without Obama's action, employees terminated involuntarily after February 28, 2010 would have been ineligible for the subsidy.

This measure will also allow employees to be eligible for the COBRA subsidy if a reduction in hours that took place prior to FebruaRY 28, 2010 is followed by a layoff during March 2010.

This is real good news, since medical coverage is virtually unattainable for many people without the COBRA reductioin. For more information, go to www.dol.gov/COBRA.

The Senate is scheduled to begin debate this week on extending the COBRA ARRA subsidy through December 31, 2010. We'll keep you posted.

Pennsylvania Unemployment Appeal Lawyer Serving Coatesville, Pottstown, Norristown, East Norriton, Malvern, Paoli, Downingtown, Media, Radnor, Newtown Square and Philadelphia Areas

We provide free initial consultations to discuss your unemployment claim, and to determine if you may have a claim for discrimination, wrongful discharge or unpaid wages.

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Pennsylvania Unemployment Hearings - What Is Willful Misconduct, Anyway?

Pennsylvania Unemployment Appeal Lawyer With Offices in Paoli, Exton, King of Prussia, Plymouth Meeting,  Radnor and Philadelphia Gives Free Consultations for Pennsylvania Unemployment Claims

Willful Misconduct is the term used to deny Unemployment Benefits to employees who have been terminated from work because they did something wrong. The term implies intentional bad conduct


This is Willful Misconduct

(Think: falsifying time card, stealing money, coming to work intoxicated, refusal to do work assigned by supervisor, surfing porn on the internet at work, stealing money from company, etc.), repeated violations of a work rule after warning (Think: repeated lateness or absence, using work equipment for personal matters during work hours after warning, etc.) or grossly negligent conduct by the employee (Think: having an accident with a company vehicle in which you are cited for speeding, running red light, etc., damaging company property through laziness or gross carelessness, sleeping on the job, etc.).

The established test for what constitutes willful misconduct is set forth in this excerpt from a 1977 Pennsylvania case called UCBOR v. Vereen:

As a general principle in order to deny unemployment compensation benefits to an employee, his or her action must involve a wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employees, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer.

In essence, willful misconduct is the intentional violation of a work rule after warning or, in the case of serious infractions (i.e. falsifying time card, theft, etc.) , a single violation of an established work rule.  Employees who truly have engaged in willful misconduct usually know that they have "done wrong."  From time to time, we see Unemployment Referees deny benefits on the grounds that a single mistake constitutes "negligence in such degree or recurrence as to manifest culpability... or show... substantial disregard of the employer's interests or of the employee's duties and obligations to the employer." These are the toughest cases to win, because the mistake is not intentional.

It is well-established that mere poor performance does not constitute willful misconduct.  However, beware - many employers who terminate employees because they are perceived "poor performers" know that they will have to pay unemployment benefits unless they can prove the employee engaged in willful misconduct.  Knowing this, they frequently try and justify their termination by asserting that the employee engaged in willful misconduct.  This is what we refer to as a "pretextual firing."  The real reason for the firing is alleged poor performance, but the stated reason for the firing is behavior the employer claims constitutes willful misconduct.

One difficult aspect of a willful misconduct case is dealing with the evidence that is presented at a Hearing before an Unemployment Referee (which is where disputed claims are decided).  Prior to the Hearing, you have little opportunity to "discover" what the employer is going to present as evidence at the Hearing.  Typically, in fact, the best you can do is go to the Hearing location a few days before the Hearing and review the file.  There, you will find the Employer's Questionnaire and any documents submitted by the employer to the Unemployment Service Center (the people that initially determine if you have engaged in willful misconduct).  Preparing for a willful misconduct hearing can therefore be difficult. 

Having done your best to anticipate the witnesses and evidence to be presented, perhaps the most critical issue is:  what to do about hearsay? Hearsay (statements or writings made by people such as co-workers, which the employer relied upon to fire you, and which the employer will rely upon at the Hearing to prove willful misconduct), is largely inadmissible at Unemployment Hearings unless the person who initially made/wrote the statement is present, provided that you object when it is presented.  Of course, the trick is knowing when to object to what, a difficult task for the average layperson experiencing the stress of an Unemployment Hearing.  Many cases are won or lost based upon the ability to get in or keep out evidence.  In the overwhelming majority of cases, you get only one shot at winning your unemployment appeal (at the Unemployment Hearing), so being prepared for your Hearing is essential.  

John A. Gallagheris 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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How Do I Appeal Unemployment in Pennsylvania?

Pennsylvania Lawyer Who Specializes in Unemployment Appeals With Offices in Paoli, Exton, King of Prussia, Plymouth Meeting, Radnor and Philadelphia Gives Free Consultations for Pennsylvania Unemployment Claims

We have handled many Unemployment Hearings before Referees in Chester County, Delaware County, Montgomery County, Berks County, Lancaster County, Bucks County and Philadelphia County. We often handle them on a contingent fee or on a flat fee basis, depending upon the situation. We know that you have lost your job, and we understand how important these benefits are to you.

WILLFUL MISCONDUCT OR VOLUNTARY QUIT CASES

Ordinarily, Pennsylvania unemployment benefits will be immediately be provided to you if, in your initial application to unemployment, you indicate that you were "laid off."

To the uninitiated, "laid off" sometimes means "terminated from employment without being given a satisfactory explanation as to why I was terminated." In many cases that we are seeing, people are saying they were "laid off" because they disagree with or do not fully understand the employer's reason for firing them. Since they are representing to Unemployment that they are laid off, they are immediately paid benefits.

However, what many people do not know when they submit that initial application, is that even after benefits have been paid to the terminated employee, the Unemployment Service Center is conducting an investigation into the circumstances surrounding the end of the employment by asking the employer to provide information on that issue.

In many cases, employers are very concerned with paying unemployment, and they will make every effort to stop the payment of benefits by stating, either truthfully or falsely, the reasons for the termination. In other cases, your ex-employer will tell unemployment that you quit your job, even where that is not exactly true.

If the employer tells unemployment that you were terminated for willful misconduct or that you quit your job, the Service Center will send a questionnaire to you and your employer asking for written statements as to why the employment ended.  These questionnaires is not a model of clarity, so you need to take care when responding. 

Having received answers to from you and your former employer, the Service Center issues a Notice of Determination either granting or denying the benefits.

NOTE:  for whatever reason, employers are allowed to submit information to the Service Center weeks or even months after your employment ended.  That is why, in some cases, you may initially be granted benefits only to receive a Notice of Determination months later finding you ineligible for benefits.

OVERPAYMENT ISSUES

Overpayments occur when, after you were initially granted benefits, the Service Center later determines that you are, in fact, ineligible for benefits.  If, after benefits were initially granted, they are later denies, then Unemployment asks the employee to pay back the benefits that he or she has received prior to the determination.

If the Service Center deems that you were honest when you completed your initial application for benefits, then it will be deemed a "non at-fault overpayment."  This usually occurs when you received benefits because your employer did not initially respond to the Service Center's request for information.

However, if Unemployment believes that the employee lied during their initial application (i.e where an employee stated he/she was "laid off" when in fact they knew they were fired for excessive absenteeism, or when they state they were fired even though they actually quit), it is deemed an "at fault overpayment," and penalties may be imposed.

INDEPENDENT CONTRACTOR CASES

Another less common area of dispute centers on whether the terminated employee was in fact an employee versus an independent contractor (the independent contractor issue comes up much more frequently with post-unemployment job opportunities.  Click Here for more on Independent Contractor cases in general).

Where your employment status is at issue, you and your ex-employer will receive an independent contractor questionnaire.  These are also quite tricky.  Once those forms are received, the Service Center will issue a Notice of Determination announcing its findings as to whether you were an employee or an independent contractor.

WHAT TO DO AFTER YOU RECEIVE THE NOTICE OF DETERMINATION

 If you received a Notice of Determination denying you unemployment compensation, you should immediately appeal the denial (you have only 15 days to do so). Similarly, you should also appeal any Overpayment Determination.  If your appeal is late, game over.  Late appeals are almost never permitted.

If the NOD is in your favor,the employer has the same 15 days to appeal.  However, you usually won't know whether the employer appealed until you receive a Notice of Hearing....

When you file  an appeal from an NOD, you need not say much. In fact, we tell our clients to simply state that "I disagree with the Determination."

THE UNEMPLOYMENT HEARING

If either you or the employer appeals the NOD, an Unemployment Hearing will be scheduled before a Referee (this Hearing usually takes place within 30 days of the appeal being filed).  At that Unemployment Hearing, an Unemployment Referee will decide whether the employee has engaged in willful misconduct or, where a voluntary quit is involved, whether the quit was justified. 

Similarly, Independent Contractor disputes are decided by Referees at Unemployment Hearings.

If the employee loses that hearing, then the Referee may also decide whether the employee was untruthful in his or her initial application. If so, it will be deemed an "at-fault overpayment" (in which case you will have to pay back the benefits you received immediately and penalties may be imposed) or whether it was a "non at-fault overpayment" (in which case you only have to pay back the benefits if, during the next three years, you apply for unemployment again).

MORE QUESTIONS?

We have more fully and completely addressed many issues arising Pennsylvania Unemployment law in our answers to FAQs; just Click Here to jump to that page.

Unemployment Attorney in Pennsylvania Serving Coatesville, Pottstown, Norristown, East Norriton, Malvern, Paoli, Downingtown, Media, Radnor, Newtown Square and Philadelphia Areas

Call 610-647-5027, e-mail me directly or send an e-mail inquiry via the "Fill Out My Form" box to the upper right of this page. We will respond promptly with an analysis of your situation, and discuss potential options going forward.

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