In the Third Circuit, an employer’s honest belief that an employee committed misconduct can now serve as a defense to a retaliation claim under the FMLA.  With the recent decision in Capps v. Mondelez Global, LLC (found here) the Third Circuit joins the Seventh, Eighth and Tenth Circuits in providing such a defense.

In the Capps case, Mondelez (the employer) fired Fredrick Capps (a longtime employee) for what Mondelez believed to be dishonest use of intermittent FMLA leave.  During the time of his employment, Capps suffered from a medical condition that required him to undergo bilateral hip replacement in 2003.  Thereafter, he experienced flare-ups that caused him severe pain, which sometimes lasted for days or weeks at a time. As a result of his condition, Capps requested intermittent FMLA leave to cover his periodic time off work.  Because of his ongoing condition, Capps was recertified for intermittent FMLA leave every six months from 2003 to the end of his employment.

On February 14, 2013, Capps reported that he would not be in to work because he was experiencing pain caused by a flare-up of his condition.  Later that same day, Capps drove to a local pub, where he got something to eat and also had a few beers and shots of alcohol with his friends.  About three hours later, Capps attempted to drive home, but was arrested for Driving Under the Influence of Alcohol (“DUI”) and spent the night in jail.  After being released from jail the next morning, Capps again called off work using intermittent FMLA leave because he said he was experiencing leg pain from his condition.

When Capps returned to work, he did not report his DUI arrest.  However, over the next several months he called off work numerous times and requested intermittent FMLA leave for his condition.  Interestingly enough, during this same time period, Capps was required to attend court hearings and other appointments related to his DUI charge.

On August 7, 2013, Capps pled guilty to the DUI charge and immediately served 72 hours in jail.  When the employer became aware of Capps’ conviction early in 2014, an investigation commenced looking into Capps’ attendance from the time of his DUI arrest to his guilty plea.  This investigation uncovered that Capps’ arrest date and several subsequent court dates corresponded with days that Capps had also used intermittent FMLA leave.  After further investigation, including discussions with Capps himself, it became clear that the documentation Capps submitted did not support his need for FMLA leave on the days that he also appeared in court.

Subsequently, Capps was discharged based on his violation of the company’s Dishonest Acts Policy and misuse of FMLA leave. The termination letter sent to Capps stated: “You claimed to be out due to [ ] FMLA related issues on multiple dates. The documentation you produced does not support your claim of [ ] FMLA related absences.”  After his termination, Capps filed suit claiming, among other things, that the employer retaliated against him for exercising his rights under the FMLA.

After having his FMLA retaliation claim dismissed on summary judgment, Capps’ argued on appeal that the District Court improperly dismissed his claim because the employer was mistaken in its belief that Capps misused his FMLA leave or was otherwise dishonest. However, the Third Circuit affirmed the dismissal of Capp’s FMLA retaliation claim emphasizing that an FMLA retaliation claim requires proof of an employer’s retaliatory intent.  In other words, Capps could not show that the employer’s reasonable belief that he was dishonest and misused his FMLA leave was a pretext for retaliation.

While employers should always proceed with caution before terminating an employee around the time he or she requests, takes, or returns from FMLA leave; the Third Circuit’s adoption of the honest belief defense provides a significant means for employers to defend against FMLA retaliation claims. More specifically, employers that discharge an employee based upon an honest belief that the employee is abusing FMLA leave may now be more likely to prevail on a motion for summary judgement.

To be clear, this case is not a get out of jail free card for employers.  Before the decision is made to terminate, employers must be sure that there is supporting evidence of the employer’s honest belief. In the Capps case, this took the form of a thorough investigation of the employee’s absences along with an opportunity for the employee to explain and support his actions.  Yet, when an employer has supporting evidence and reasonably believes that an employee abused FMLA leave or was otherwise dishonest about the need for such leave, this honest belief will serve as the employer’s defense to a FMLA retaliation claim.

This post was contributed by Erica Townes, a McNees Summer Associate. Ms. Townes is a rising third year law student at the Widener University Commonwealth Law School and is expected to earn her J.D. in May of 2017.

Recently you’ve noticed that an employee takes FMLA-covered leave the same week every year or always seems to have a medical emergency between Thanksgiving and January 1. Similarly, another employee regularly calls out of work requesting FMLA-covered, coincidentally on Fridays during football season. How can employers prevent this type of FMLA leave abuse? Several courts have addressed this issue.

Generally, employers are free to enforce company policies even with respect to employees on FMLA leave, provided that such policies are consistent with the FMLA.  Specifically, company policies cannot conflict with or diminish rights guaranteed under the FMLA.  Accordingly, the Third Circuit, the court of appeals that covers Pennsylvania, has routinely held that employers do not have to forego enforcement their call-in policies simply because an employee is FLMA eligible.

The Third Circuit has upheld an employer’s right to terminate employees for violating other policies while the employee was out on FMLA leave.  While employees may view these call-in policies as burdensome or intrusive, courts have expressly held that, despite the fact that employees have the right to take FMLA leave, employees do not have the right to be left alone when out on leave.

For example, one employer implemented a policy that required employees out on paid sick leave to stay home unless the employee was tending to a personal matter related to the reason they were on sick leave.  The employer further required employees to notify a hotline upon leaving and returning to their home, and if necessary, a sick leave investigator could call or visit the employee while he or she was out on leave.  In that case, the court held that the policy could be applied to an employee who was using FMLA-covered leave concurrently with paid sick leave, and that such application of the policy did not run afoul of the FMLA because nothing in the FMLA prevents employers from ensuring that employees are not abusing their leave.

In another case, an employee took FMLA and paid sick leave concurrently to have an operation done.  Only a few weeks after the operation, the employer learned that the employee had gone on a trip to Cancun, Mexico with friends, and as a result, the employee was terminated.  The employee brought a claim challenging her discharge under the FMLA.  Ultimately, the court held that the employee was bound by the employer’s sick leave and absenteeism policies, emphasizing that the FMLA, in no way, restricted the employer from preventing FMLA fraud.  As such, the discharge was upheld.

The Third Circuit has also held that an employer may enforce a written policy prohibiting moonlighting, or working part-time for a different employer, while the employee is out on FMLA leave.

The lesson learned from these cases is that employers have the right to safeguard against FMLA leave fraud and abuse.  To that end, employers may implement policies to reduce the fraudulent use of FMLA, so long as such policies do not abrogate rights guaranteed to the employee under the Act.

Practice Pointers

In addition to the policies mentioned above, consider the below practice pointers.

  • Consistency.  When handling FMLA leave, consistency is critical.  Providing an exception to the rule out of sympathy may hurt the employer in the long run as a disgruntled employee will use such exceptions against the employer in the future.  As the old adage goes, no good deed goes unpunished.
  • Records.  Maintain accurate records of FMLA leave so that (1) an employee’s FMLA eligibility can be accurately determined and (2) to identify suspicious patterns of absence.
  • Paid Leave.  Consider requiring employees to use paid leave concurrently with, or even before, FMLA leave. An employee will be less inclined to abuse FMLA leave if he or she has to exhaust their on time.
  • Abuse.  Immediately address employees who violate your policies.  Without doing so, employees may later argue that the employer excused the violation.
  • Seek Advice.  If you are still unsure whether you can enforce a particular policy, seek advice from legal counsel.


For government employers, disciplining and terminating employees can be especially difficult. Not only does the public employer face the same challenges in complying with the standard alphabet soup of employment laws that private employers do, including the ADA, ADEA, FMLA, Title VII, etc., they also have the complicated task of considering the application of an employee’s Constitutional rights in making employment decisions. Unfortunately, the protections provided by the constitution to government employees don’t rely on the kinds of “immutable” traits often in issue in the alphabet soup context, which means that determining when constitutional rights could be violated is particularly troublesome.

Recently, in Heffernan v. City of Paterson, the United States Supreme Court brought the analysis applicable to First Amendment retaliation claims closer to your typical alphabet soup case in one small way – focusing on the employer’s intent. In a typical discrimination context, the employer’s intent is key when examining the reason given for the action and the circumstantial evidence that may call that stated reason into question. In short, the question is: was it the employer’s intent to discriminate in disciplining an employee, or was it really the employee’s violation of an employer policy?

In the First Amendment context, employer intent is usually irrelevant or assumed; the focus instead is on whether the speech or activity is personal or on a matter of public interest, whether the employee acted as a citizen or an employee, and how the speech or activity could harm the government’s interests. Heffernan, however, presented the unique situation where the employee contended he didn’t intend to speak or act at all, but the employer punished him for its perception that he had. The Court therefore faced the following question: whose intent is more significant in the constitutional rights context? The Heffernan Court found that it is the employer’s intentions that are critical to determining whether there has been a violation of the employee’s rights.

In reaching this decision, the Court considered the following facts: Jeffrey Heffernan was employed as a police officer for the City of Paterson in 2005 under Chief of Police James Wittig. Both the Chief and Heffernan’s direct supervisor had  been appointed to their positions by the Mayor, who was running for reelection. During the campaign, Heffernan’s colleagues spotted him at campaign headquarters talking with campaign workers and holding a campaign sign for the Mayor’s opponent, who was a known friend of Heffernan. When word reached his supervisors, Heffernan was demoted from a detective position to a patrol officer position, and given an undesirable patrol post, allegedly to punish his involvement in the opposition’s campaign.  Heffernan denied being involved in the campaign, and denied supporting the candidate, stating that he was only picking the sign up for his mother, who was bedridden and could not do it for herself.

In response to his demotion, Heffernan filed a lawsuit against the City contending that he had been demoted because the City believed he engaged in conduct that constituted protected activity, even though he denied that he had intended to speak or act.

Prior case law is very clear that government employers are prohibited from making an employment decision because an employee supports a particular political candidate. However, Heffernan was contending that he didn’t actually support the oppositional candidate, but the City mistakenly believed he did. The City’s position in the litigation was that, since he hadn’t intended to engage in protected activity, his activity wasn’t protected…and its demotion decision could therefore only violate his rights if in fact he actively supported the candidate.

Ultimately, the Court concluded that “the government’s reason for demoting Heffernan is what counts…When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects (even if the employee did not intend to engage in that activity), the employee is entitled to challenge that unlawful action under the First Amendment…” Whether the employer has correctly or incorrectly deduced the employee’s motives in engaging in particular behavior, the Court opined that the same constitutional harm would result – an employee would be demoted or terminated for appearing to engage in protected activity, thereby discouraging other employees from engaging in what should be protected activity. Because the harm would result regardless of the accuracy of the employer’s belief, the employer’s reason for the employment action must govern in determining if a First Amendment cause of action and violation exists.

Unfortunately for Heffernan, his fight with the City will continue on, as the Supreme Court did not reach the ultimate question of whether his rights had been violated. To the contrary, the Court’s decision remanded the case back to the trial court to determine whether or not Heffernan’s demotion occurred pursuant to an existing neutral policy prohibiting police officers from overt involvement in any political campaign, and whether such a policy complies with constitutional standards generally.

The immediate take-away for government employers and elected officials (and the HR personnel who love them), in light of the Heffernan decision should be on the reinforcement of what we know already from other employment discrimination cases: we must examine the reason for an employment decision before it is made to ensure there is  no protected classification or protected activity motivating the decision. Even if the employer is  wrong about what the employee intended by his actions, a decision motivated by an intent to punish what would otherwise be protected activity could violate the constitution.

In a recent opinion, the Pennsylvania Superior Court upheld a judgment in favor of a healthcare employee that alleged wrongful termination of employment following her repeated refusal to work mandatory overtime. The judgment included damages of $121,869.93 and an order reinstating the employee to her former position. The Court’s opinion focused on the question of whether an employer’s violation of Act 102 can form the basis of a wrongful termination action. The Court answered that question affirmatively in the case of Roman v. McGuire Memorial.

Pennsylvania’s Act 102, the Prohibition of Excessive Overtime in Healthcare Act, generally provides that a covered health care facility may not require an employee to work in excess of a predetermined and regularly scheduled work shift. This prohibition is aimed at limiting situations where employees of covered health care facilities are “mandated” to work overtime with little or no advance notice. Health care facilities covered by Act 102 include most hospitals and long-term care facilities.

In this case, the employee alleged that she was terminated after her fourth refusal to work overtime mandated by her employer, a covered healthcare facility. The employer had a policy in place requiring direct care workers to work mandatory overtime. The employee claimed that she informed her employer that she could not accept mandatory overtime due to child care responsibilities. She also claimed that she informed her employer that the policy of mandating overtime was in violation of Act 102. After she was terminated, the employee filed a lawsuit claiming wrongful termination in violation of Act 102’s prohibition on mandatory overtime.

Although Act 102 generally prohibits retaliation against an employee for refusal to accept overtime mandated in violation of it, the law does not provide for a specific right to file a lawsuit. Instead, Act 102 contemplates administrative penalties to be enforced by the Pennsylvania Department of Labor and Industry.

The employer argued that because the statute had defined how the act would be enforced it could not also form the basis of  a private cause of action for wrongful termination. The Pennsylvania Superior disagreed, holding instead that Act 102 could form the basis of a wrongful termination claim because it did not specifically provide for an exclusive remedy.

At the core of the Court’s decision is the ever evolving concept of at-will employment and the recognized exceptions to it. Although an employee at-will, the employee successfully argued that her termination was wrongful because it violated a clear public policy of the Commonwealth prohibiting excessive mandatory overtime as set forth in Act 102. Pennsylvania employers should recognize that while the doctrine of “at-will” employment is still alive and well, the exceptions to it are many and growing. Termination of an employee that asserts a right protected by law is often enough to support a claim of wrongful termination.

According to a recent announcement by the Office of UC Service Centers, employers in Pennsylvania can expect that telephone calls will now be part of the state’s fact-finding process in connection with initial eligibility determinations for unemployment compensation benefits.

In the past, when a former employee filed a claim for UC benefits, the employer received a written form questionnaire issued by the local Service Center seeking the information needed to make an initial eligibility determination (such as the nature of and reasons for the claimant’s separation from employment).  According to the announcement, Service Center claims examiners will now call employers to request this information over the phone. It appears, however, that an employer still may elect to provide most of the information relevant to the initial eligibility determination in writing.  An employer who chooses not to participate in telephone fact-finding will be expected to inform the examiner of the nature of the separation and provide an email or fax number to which written fact-finding requests can be sent.  In addition, it is the employer’s responsibility to ensure that its response is complete and provided in a timely manner.


Separately, it is important to keep in mind that whether the response is provided by phone or in writing, by law an employer’s UC reserve account will be charged for claimant overpayments resulting from a failure to respond or an inadequate or untimely response.  An employer’s response to a request for information in connection with a UC claim will be considered untimely if not provided within the response time allotted (14 days) and inadequate if “the response misrepresents or omits facts that, if represented accurately or disclosed” would have been the basis for denying benefits.

Other than the announcement itself, there does not appear to be any additional information available at this time concerning the intention of state UC authorities to move toward telephone and away from paper based fact-finding at the initial stage of the process. Even so, at the very least employers should expect to receive telephone calls from local UC Service Centers requesting employment and separation information in connection with UC claims. While it should go without saying that truthfulness and cooperation are always recommended when providing information to the state in response to UC claims, the exercise of caution is also warranted when the circumstances involve former employees/separations that are complex, adversarial, or otherwise problematic. In these cases, it is best that the employer ask for the opportunity to provide a written response. Providing a prepared written response versus an immediate/on-the-spot verbal response is likely to reduce the margin for error and enhance the effectiveness of the response.

Contact any of the attorneys in the McNees Labor & Employment Practice Group if you have a question about this post or need assistance with evaluating, responding to, or contesting UC claims.

The Pennsylvania Supreme Court recently re-affirmed the principle that in order to have an enforceable non-compete agreement in Pennsylvania, the agreement must be supported by adequate consideration and that a statement merely agreeing to be “legally bound” doesn’t meet that requirement. The Court ruled against a waterproofing company hoping to enforce a non-compete agreement against one of its former salesmen.  The employer did not provide consideration but unsuccessfully based its argument on language from a 1927 state law called the Uniform Written Obligations Act (“UWOA”). The full opinion, Socko v. Mid-Atlantic Systems of CPA Inc., can be read here.

In the Socko case, after the start of his employment, a salesman (Socko) signed a non-compete agreement. The salesman was not given any additional consideration (such as a raise or access to new, confidential information) but the agreement did state that the parties intended to be “legally bound.” In seeking to enforce the non-compete, the employer attempted to rely on the UWOA which provides that a written promise “shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.” The “magic” statutory language seems pretty clear, so the employer should easily win, right?  Several employers had won on this issue in prior Pennsylvania federal court decisions, so they felt optimistic about their chances.  However, the issue is ultimately controlled by state law, and that is interpreted by the Pennsylvania Supreme Court.

The Supreme Court rejected the employer’s approach. It noted that, while courts typically do not inquire into the adequacy of consideration, “the area of restrictive covenants in employment contracts is an exception to the general rule” and a non-compete agreement is unenforceable in Pennsylvania unless the employee receives an actual benefit in consideration for his/her agreement. Recognizing that non-competes have historically been disfavored by courts as a restraint on trade that prevent a former employee from earning a livelihood, the Court concluded that the salesman’s agreement lacked actual, valuable consideration and struck down the agreement as unenforceable.

What does this all mean? Well, without the availability of the UWOA’s “magic” language, for a non-competition agreement to be enforceable in Pennsylvania, non-compete agreements must be entered into either at the commencement of employment or, if entered during employment, supported by new and valuable consideration. In addition to the required consideration, the non-compete must also be reasonably necessary for the protection of an employer’s legitimate business interests and reasonably limited in scope, duration, and geographic coverage. In plain English, to be enforceable in court, the Agreement needs to be reasonable and either a) signed at the start of employment or b) supported by other adequate consideration (such as a monetary payment or a promotion).

Because reliance on the UWOA had been an iffy proposition for years, employers not wishing to test the parameters of the law had been following the consideration rules for years despite the potential beneficial language of the UWOA. The proposition that non-competes are generally disfavored by Pennsylvania courts and valuable consideration is needed to enforce them is not news to them. However, If you wish to review your current non-compete agreements or explore entering into non-competition agreements or other restrictive covenants for your employees (or if your business is considering hiring somebody subject to a non-competition agreement), contact any of the attorneys in the McNees Labor & Employment Group for guidance. If a competitor is trying to enforce a non-competition agreement on you or you are seeking to enforce a non-competition agreement against a current or former employee, legal action could be necessary within a matter of days, if not hours. If you find yourself in a situation where you need to prevent or stop the release of trade secrets or other confidential business information, contact the McNees Injunction team for immediate assistance.

No, we’re not talking about the skit performed by the McNees Players at our recent Labor and Employment Seminar. In a recent case out of a Pennsylvania federal court, an employee alleged that she suffered from a fragrance allergy and “multiple chemical sensitivity” to fragrant chemicals, perfumes and scented lotions, which impacted her in several ways, including migraines, nausea and difficulty concentrating and focusing. After suffering for several years, she informed her employer of her sensitivity and asked for a “fragrance-free zone” at work. Over the course of the next ten months, the employer made various accommodations, including providing (and later replacing) an air purifier for her desk, relocating her workstation, purchasing face masks (which she refused to wear), distributing a “no fragrance memo” to employees (no less than four times), and cleaning and replacing the panels of her work station. The employee continued to suffer the adverse effects of her allergy and even took a brief medical leave, for which she was subsequently notified was FMLA-eligible.

Despite these efforts, the employee continued to suffer adverse effects and was unable to work her full schedule. She ultimately took additional time off and was notified that she was potentially eligible for leave under the FMLA. However, just one week after submitting a request for medical leave- and before receiving a response- she was terminated, allegedly for her failure to regularly report to work and consistently perform her essential job functions. The employee filed suit alleging FMLA, ADA and PHRA violations, and the employer subsequently sought summary judgment.

In reviewing the employer’s request for summary judgment, the court was not convinced that the employee was ineligible for FMLA leave as argued by the employer, both because her request could be construed as a request for intermittent or reduced leave and the employer had notified the employee less than two weeks before her termination that she was potentially eligible for such leave, and further, that there was evidence of retaliation and a pretextual reason for her firing.  The court also found that the employee offered enough evidence to meet the definitions of disability (under both the old and new ADA standards) and qualified individual, as well as “at least some evidence of… hostility” towards the employee as a result of her condition in regards to her ADA and PHRA claims of disability discrimination. As it had in regards to retaliation, the court opined that the employee provided sufficient evidence to show that the employer’s reason for terminating her was pretextual.

In denying the employer’s motion for summary judgment on all counts, the court’s opinion provides a few key reminders about the FMLA:

  • Terminating an employee who has made a valid FMLA leave request may amount to interference and retaliation, which are both prohibited under the FMLA.
  • Intermittent or reduced leave is permissible under the FMLA.
  • Timing may be “unusually suggestive of retaliatory motive.”

This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.

Pennsylvania employers can achieve positive results and realize other important gains by wisely and effectively responding to, and when appropriate, contesting unemployment compensation claims. This post is Part 3 of a 3 part series on handling UC claims and addresses best practices for appealing to the Unemployment Compensation Board of Review/Commonwealth Court, when to involve legal counsel, and mandatory electronic filings of UC quarterly reports. Part 1 can be viewed here and Part 2 can be viewed here.

Appeal to the Unemployment Compensation Board of Review (UCBR)

  • It is important that you file your appeal within 15 days from the date the Referee’s Decision/Order is issued (not the date of employer’s receipt)
  • This is a simple process and can be completed by letter or by filling out a UC Appeal petition form. You can mail, fax, or e-mail the appeal letter/petition.
  • Be sure to include the claimant’s name, UC claim number, last four digits of the claimant’s social security number, the date of the decision, and statement of the reasons for the appeal.
  • This is a paper appeal. There is no additional hearing. An additional hearing will only be ordered in very rare instances to take additional evidence if the initial hearing was not complete. The Board will consider the Referee’s hearing transcript and exhibits and will issue a Decision and Order.
  • The appealing party can request a copy of the hearing transcript and permission to submit a letter highlighting why the decision should be reversed or a more formal brief with legal authority in support of an appeal–but a supporting letter/brief is not required. Likewise, the non-appealing party can request a transcript and permission to submit a letter or brief in opposition to appeal (but neither is required).

Appeal to Commonwealth Court

  • You can appeal the decision of the UCBR to the Pennsylvania Commonwealth Court. This is more complex and costly than administrative appeals to the Referee or the UCBR.
  • A petition for appeal must be filed with the Court within 30 days of the date of the Board’s Decision/Order (not from date of employer’s receipt).
  • An appeal to the Commonwealth Court is a much more formal and has detailed procedural requirements including the provision of a reproduced record and supporting/opposing briefs. Technically you can "do it yourself" but you should have an attorney involved due to substantial procedural requirements.

When to Involve Legal Counsel in UC Cases

  • Involving legal counsel at the earliest stage, when necessary, can greatly increase an employer’s chances of success and limit exposure to more significant liability in certain cases.
  • Example of when to involve counsel include:

A) complex cases involving difficult factual or legal issues (independent contractor vs. employee classification issues, separations due to failed drug test);

B) When there is the possibility of exposure to other more significant potential liabilities, such as when a claim of discrimination has been made or is anticipated in connection with the employee separation related to the UC benefit application; or

C) When the claimant has legal counsel.

Mandatory Electronic Filing of UC Quarterly Reports

Effective with the first quarter of 2014, employers are required to electronically file quarterly UC tax and wage reports through the Unemployment Compensation Management System (UCMS). Employers will not receive and may not file paper filing forms unless a waiver has been requested and granted. Failure to electronically file as required may result in assessment of a penalty (10% of quarterly contributions for the period with a minimum $25 and maximum $250 penalty amount).

If you have any questions regarding any of the information discussed in this 3-part series or need assistance with an unemployment compensation matter, please contact any member of our Labor and Employment Law Group.

This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.

Pennsylvania employers can achieve positive results and realize other important gains by wisely and effectively responding to, and when appropriate, contesting unemployment compensation claims. This post is Part 2 of a 3 part series on handling UC claims and addresses best practices for preparing for and participating in a Referee’s Hearing. Part 1 can be viewed here.

Preparing for the Referee’s Hearing

  • Know relevant facts inside and out. 
  • Review Notice of Hearing to confirm issues that will be addressed at the hearing.
  • Identify and prepare necessary witnesses. Only present witnesses with first-hand, direct knowledge of relevant facts. Avoid hearsay and second-hand testimony.
  • Timely request and serve a subpoena for any necessary adverse or other witness that is not readily available to you. Be sure to check the availability of all necessary witnesses in advance!
  • Timely request a continuance if necessary.
  • Identify, assemble, and organize relevant documents to be introduced at the hearing. Each document used at the hearing must be identified and authenticated by a proper witness (one with first hand knowledge of what the evidence is). Bring 4 copies of each document to the hearing (one each for the witness, the employer’s presenter/representative, claimant/opposing attorney, and the Referee).
  • Review the Referee’s file prior to the hearing. You can do this the day of prior to the start of the hearing or prior to the hearing date.
  • Request copies of any claimant statements or other documents that you don’t have which could be helpful to (or hurt) your case.
  • Prepare an outline and/or questions in advance to avoid missing any important points.

Telephone Testimony

  • Determine if any witness qualifies and will need to testify by telephone and if so make a prompt request. The Referee may schedule testimony by telephone when a party or witness is located at least 50 miles from the hearing location.
  • Testimony by telephone of a party or witness may also be allowed, at the request of a party, when the parties consent to the receipt of testimony by telephone or the party or witness is reasonably unable to testify in person due to a compelling employment, transportation, or health reason, or other compelling problem.
  • Special rules apply to hearings involving telephone testimony. For example, special notices must be issued by the Referee’s office well in advance of a hearing involving telephone testimony (as much as 14 days in advance). Submit a request for permission to present telephone testimony as soon as possible.
  • Documents to be used in connection with the telephone testimony must be identified, exchanged, and provided to the witness who will testify by telephone in advance. The party requesting testimony by telephone is responsible for identifying, assembling, and providing documents. The requesting party must supply the name, location, and telephone number of any witness who will testify by telephone. The witness may be questioned to confirm identity.

At the Hearing

  • Be respectful and polite to the Referee, the other side, and witnesses despite the adversarial nature of the hearing. Referees will evaluate your actions during the hearing including an assessment of your credibility. Substance/facts–neither style nor grandstanding–will carry the day.
  • Organize and present your case in a logical and clear manner. Start with relevant background, present a chronology of events, and tell the Referee what the case is about early on (e.g., the Claimant was terminated for stealing), then go back and fill in details.
  • Stick to relevant facts: Get all important facts in the record; avoid getting side tracked and distractions.
  • Object to irrelevant or improper testimony or documents. Use your judgment and common sense, if it does not seem relevant, state an objection on the record.
  • State on the record if you feel that the Referee is precluding you from presenting relevant information. This could be important if there is an appeal.

Stay tuned for Part 3 of this series. In part 3, we will provide tips for appealing a Referee’s decision, when to involve legal counsel, and filing required reports.

This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Scranton, Pennsylvania.

Pennsylvania employers can achieve positive results and realize other important gains by wisely and effectively responding to, and when appropriate, contesting unemployment compensation claims. This post is Part 1 of a 3 part series on handling UC claims and addresses best practices for responding to the initial UC claim.

Responding to the Initial UC Claim

  • Prior to termination, think about possible claims. If applicable, couch the decision in terms of willful misconduct. If you issue a discharge letter, be sure to cite relevant policies.

Respond to all claims (both contested and uncontested).

  • A late 2013 amendment to PA’s UC Law provides that an employer’s UC reserve account will be charged for claimant overpayments as a result of an employer’s failure to respond or late response to information requests by UC authorities.
  • An Employer’s response will be considered inadequate if “the response misrepresents or omits facts that, if represented accurately or disclosed” would have been the basis for denying a claimant benefits. Other penalties can apply.
  • The days of not responding are over — Employers can no longer risk playing too fast and loose with responding to requests for information relating to UC benefit applications.
  • Be careful of “assisting” separating employees with obtaining UC benefits or promising not to contest benefits.

Respond timely.

  • 14 days to respond (from date on UC questionnaire form (not date of employer’s receipt).
  • Consequence of failure to respond or late response: an eligibility determination may be issued without consideration of employer’s information.

Be accurate and consistent.

  • Provide clear, first-hand information regarding reason for separation.
  • Inconsistencies, inaccuracies and exaggerations can come back to bite an employer in connection with other more significant matters! (Example – discrimination claims).

Appealing the Initial Determination

  • Simple process: can be by letter or a UC appeal petition form
  • Can mail, fax, or e-mail appeal letter/petition
  • Be sure to include the claimant’s name, UC claim number, last four digits of the claimant’s social security number, the date of the decision, and statement of the reasons for the appeal.
  • Submit timely appeals –15 days from the date of the decision (not the date of the employer’s receipt). The appeal is timely if post-marked by the appeal deadline date or otherwise upon receipt.

Stay tuned for Part 2 of this post where we will explore preparing for a referee’s hearing and what to do at the hearing!