Overpayment Risk Management & Lucky Win
One very consistent stream of clients that we represent are those that feel they shouldn’t really have been determined eligible, received 1-3 weeks of unemployment benefits, and now have an upcoming unemployment hearing because the employer appealed. Clients then seek our experienced unemployment lawyers so that when they likely lose they are deemed “Non-Fault Overpayment.” Unemployment benefits paid out are kept and all other penalties are avoided.
It may help to see the investment in an unemployment attorney in a cost-benefit analysis. The money spent now protects dozens of weeks where you can collect hundreds of dollars per week. Considering all the weeks of unemployment benefits against the cost of an unemployment lawyer, having an unemployment attorney makes sense. For instance, if you are only collecting benefits for 10 short weeks, having an unemployment attorney on your side can protect your unemployment benefits. An unemployment appeals lawyer’s importance cannot be overstated.
When employers contest your benefits at an unemployment hearing, they will bring extensive documentation regarding your separation from employment. One example may be the results of a failed drug test entered during an unemployment hearing. Should this evidence be admitted without objection or rebutting testimony, the truthfulness of your statements on the initial application can be called into question. From that, you can be determined to be in overpayment in be liable for repayment, penalties, and criminal prosecution. The Unemployment Service Center has a team to investigate fraud and waste. They often compare public records, tax records, statements from the employer, statements from individuals, and compare that to anything you have said or done with applying for or receiving any unemployment benefits. More recently, online tipsters have provided a quick avenue for identifying fraud. But bottom line is that by the time your unemployment hearing arrives you have only received 1-3 weeks of unemployment benefits. Generally, the worst adverse result is that you are required to pay your benefits back due to a fault overpayment. And yes they would let you pay in installments, but you would not be allowed to take out unemployment again until it was paid back.
There is nothing wrong with having an unemployment lawyer advocating on your behalf to avoid greater consequences. People in these situations are overwhelming glad they had an experienced attorney specializing in unemployment for several reasons:
1. Net financial gain.
2. No major financial repayment.
3. No penalties.
4. Do not have to confront former employer alone.
5. Highly damaging evidence is precluded.
6. Record is more favorable to clients.
If these reasons are not convincing enough, the coup de grace is that a surprising number of employers are caught off guard by the presence of an unemployment lawyer. Say, for example, an HR representative came with affidavits from colleagues about the incident for which you were terminated. We would have all their evidence excluded as hearsay and if the employer had the burden of proof, but had presented no evidence, we would likely prevail. That means that you are entitled to all of your unemployment benefits and it will likely be a very tough appeal for your employer.
Tough Appeal
Do NOT make the mistake of thinking you’ll go in alone for your referee hearing, then get a lawyer’s help for your appeal to the Unemployment Compensation Board of Review. The worst situation is when a client appears pro se at their unemployment hearing and in the unemployment appeal to the UCBR. Pro se litigants have a very, very small percentage of decisions being overturned. That means if you lose before the Referee, the statistical odds are badly stacked against you ever overturning that result on appeal.
The referee hearing is the “trial” level of PA unemployment claims. This is where you present your case, make or break. During your initial consultation we are going ask about the evidence that was submitted. More often than not, we have the unfortunate position of explaining to people that because they didn’t take an unemployment attorney they lost their unemployment hearing because of “bad evidence” that never should have been submitted. We can attempt to help but they will likely lose their unemployment appeal.
The UCBR has the role of reviewing the legal determinations of the Referee. Because they do not make findings of fact, your major chance to prevail rests at the unemployment trial level with the Referee. Literally every day, we turn away callers who seek out our help too late – when they have already lost at the crucial Referee hearing level because they thought they could win without an unemployment attorney.
In sum, it’s hard for any party to have a decision by the Referee overturned by the UCBR.