Can unemployment benefits be denied for poor work performance in PA?

Posted by Zachary Zawarski in Unemployment Benefits on December 23, 2010 | Comment »

Many people who are terminated for “poor work performance” are wondering if they will be denied Pennsylvania unemployment benefits. In our last article, we discussed the reasons unemployment compensation benefits are denied. To summarize, PA UC benefits are denied for the following three reasons: (1) you voluntarily quit; (2) willful misconduct; and (3) you did work for the employer long enough (16 weeks).

Wilfull misconduct is found when the employer’s interest is disregarded by the employee. The next question becomes, is poor work performance considered willful misconduct under PA UC laws? The answer is no, you will not be denied unemployment benefits for poor work performance unless the board finds that it was intentional or willful. If it is found that you intentionally failed to work to the best of your ability, your UC benefits may be denied.

In order for there to be willful misconduct, the employer will have the burden of establishing conduct that was intentional, done knowingly, or willful. There are clear violations when an employee knowingly violates a work rule established by the employer. Additionally, when an employee disregards and employer’s simple and clear instructions without cause, the board will also find willful misconduct.

Willful misconduct has been defined by the Pennsylvania Supreme Court as:

a) wanton or willful disregard for an employer’s interests; b) deliberate violation of an employer’s rules; c) disregard for standards of behavior which an employer can rightfully expect of an employee; or d) negligence indicating an intentional disregard of the employer’s interest or an employee’s duties or obligations.

The following definition of misconduct also helps determine what is and what is not willfull misconduct.

“The term ‘misconduct’ as used in (the disqualification provision) is limited to conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violations of disregard of the standards of behavior which the employer has the right to expect of his employee. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances or good faith errors in judgment or discretion are not to be deemed ‘misconduct’.”

If you have been denied UC benefits in PA and would like representation for an appeal, please contact me by calling (484) 362-9286. Please be aware that you only have 15 days to appeal a denial of unemployment compensation benefits.

What is an “adverse employment action” in the context of discrimination cases?

Posted by Zachary Zawarski in Employment Discrimination on December 16, 2010 | 1 Comment

Do you feel that you have been retaliated against in the workplace because you filed a claim for discrimination? In order to establish a claim for retaliation, you must show that you have suffered a materially adverse employment action. In other words, you were fired, denied a promotion, demoted, or you saw a decrease in your pay. Failure to get a certain job assignment or a more favorable office space may not be sufficient to bring a claim for retaliation.

In a 2010 decision, Rebecca Lockridge v. University of Maine System, the First Circuit Court of Appeals examined whether failing to obtain an open position at a more favorable office location was retaliatory when the position was denied to a woman who previously filed a claim for discrimination.  The Court held that to be materially adverse, the action must be one that could dissuade a reasonable worker from making or supporting a charge of discrimination. In other words, would the employer’s conduct directed towards the employee who filed a discrimination claim be sufficient to prevent other employees from bringing a discrimination claim on their own behalf if they are discriminated against.

Under previous precedent, disadvantageous transfers or assignments were clearly held to be an adverse employment actions.  In another case, which upheld a charge of retaliation, a court held that a police officer’s transfer to a remote and solitary duty site for an unusually long period of time constituted a materially adverse employment action since it was regarded as punishment.

The key to the Lockridge decision is that other similarly-situated individuals in the office with seniority were also in the same position as the plaintiff. Therefore, the denial left the plaintiff in no worse position than her similarly-situated colleagues.

If you believe you have been retaliated against because you filed a claim for discrimination, please contact us for a consultation.

Does an individually-owned LLC with no employees need an EIN?

Posted by Zachary Zawarski in Business Law on December 10, 2010 | Comment »

LLC EIN RequirementsThere has been some confusion as to whether an EIN is required for an individual LLC owner who does not have any employees.

Choosing LLC Tax Status

When a multi-member LLC is formed, it must choose how it wishes to be taxed. It can be taxed as either a partnership or a corporation, including an S-corporation. Form 8832 must be filed with IRS if the business wishes to be taxed as a corporation. Otherwise, the default tax structure is that of a partnership.

Individually-Owned LLCs

However, what if the LLC has just one owner and no employees? Under this scenario, the LLC is considered a “disregarded” entity. For income tax purposes, the entity will be taxed as a sole proprietorship. Like a multi-member LLC, the LLC can always elect to be taxed as a corporation by filing form 8832.

LLC EIN Laws and Requirements

The next question is if there is just one owner with no employees, does the LLC still need an Employer Identification Number (EIN)? The answer is not necessarily under certain circumstances.

If the LLC is a disregarded entity, in other words, it’s individually owned with no employees, an EIN is not required and it is not liable for excise taxes. The LLC should use the tax ID number (TIN) of the single-member owner (your social security number) for federal tax purposes. However, if the single-member LLC wishes to open a bank account or if state law requires an EIN, then an EIN must be obtained.

This comes directly from the IRS website. Please see their website for any applicable forms. You can also apply for an EIN here.

Required Employer Postings In Pennsylvania

Posted by Zachary Zawarski in Business Law, Employment Law on November 15, 2010 | Comment »

Every Pennsylvania employer is required to post certain notices within the workplace. Failure to post the required notices may result in liability including fines, penalties, or liquidated damages.

Here is a general checklist of notices that must be posted by employers:

  • Minimum Wage Law and Fact Sheet – Form No. LLC-1 – Contact the Department of Labor and Industry (717-787-4671)
  • Abstract of Equal Pay Law – Form No. LLC-8 – Contact the Department of Labor and Industry (717-787-4671)
  • Unemployment Compensation Form – Form UC-700 – Contact the Department of Labor and Industry (717-783-3140)
  • Workers’ Compensation Insurance Posting – Form LIBC-500 – Contact the Department of Labor and Industry (717-783-5421)
  • Employment Provisions of the PA Human Relations Act – Contact the Pennsylvania Human Relations Commission (717-772-2845)

Please consult with an attorney to determine if any additional notices are required to be posted in your workplace.

In some cases, additional notices may be applicable to your specific business. For example, places of public accommodation (restaurants and doctor’s office) are required to post specific notices. Banks, lending institutions, and real estate brokers are also required to post certain additional notices.

Additionally, if an employer has employees under the age of eighteen, additional notices such as the Abstract of the Pennsylvania Child Labor Law (Form No. LLC-5) and Hours of Work for Minors Under Eighteen (Form No. LLC-17) are required.

If you have any questions, please contact me by calling (484) 362-9286.

How To Establish Employment Discrimination

Posted by Zachary Zawarski in Employment Discrimination on November 12, 2010 | Comment »

If you have been discriminated against in the workplace, you may be wondering what you have to prove to establish a case. The first thing to be aware of is that employment discrimination applies to all types of employment actions. Not only do discrimination laws apply to the hiring and termination of employees, but it also applies to job assignments, compensation, promotions, and job benefits.

The Supreme Court has stated that the following four elements must be proved to establish a prima facie case of employment discrimination:

  1. Protected Class — You must be a member of a protected class which consists of race, sex, national origin, religion, and age.
  2. Qualified — You must establish that you are qualified for the position in question.
  3. Adverse Employment Action — You must establish that you were either denied a job, terminated from a job, failed to receive a promotion, or were denied certain benefits because you are a member of a protected class. Please visit our article examining the standard used for determining adverse employment actions.
  4. Inference of Discrimination — There must be circumstances that indicate that the adverse employment action was taken because of your status as a member of the protected class.

A prima facie case means “it appears on its face.” It does not mean that you will automatically be successful. Once a prima facie case is established by the plaintiff, the burden will shift to the employer to establish that the adverse employment action was not based on the plaintiff’s membership to a protected class.

For example, if an employee is being discriminated against because of their race and establishes a prima facie case, the burden shifts to the employer to state that that adverse employment action was not based on the employee’s race, but was based on a legitimate, non-discriminatory reason.

For example, the employee lacked the necessary qualifications or did not perform the job satisfactorily. Once the employer can establish a legitimate, non-discriminatory reason, the burden will then shift back to the employee to establish that the employer’s given reason was not the real reason for the employment action taken.  This would be established by the facts and circumstances which shows that the real reason was discriminatory.

If you believe you have been discriminated against in the work place, please contact me.

Why was I denied unemployment benefits?

Posted by Zachary Zawarski in Unemployment Benefits on October 28, 2010 | 1 Comment

If you were terminated from your employment, seek unemployment compensation benefits immediately, which can be done at the Pennsylvania Department of Labor and Industry website. When you apply for UC benefits, your claim will either be accepted or denied. Your employer has the ability to contest your claim for unemployment benefits. If a claim is denied, you have the right to appeal the decision.

In Pennsylvania, there are generally three reasons why your unemployment compensation benefits were denied:

  1. You voluntarily quit — If you voluntarily quit your job, you are not entitled to UC benefits.
  2. You were terminated for misconduct — Only terminations that are not the fault of the employee are covered. If your employer had cause to terminate your employment, you are not entitled to unemployment benefits.
  3. You did not earn sufficient wages — In Pennsylvania, in order to receive UC benefits, you are required to earn at least $50/week for a minimum of 16 weeks. If you have not worked for this amount of time and earned the minimum amount, your UC benefits claim may be denied.

If your unemployment compensation benefits claim has been denied and you believe that the decision was wrong, please contact me so I may file an appeal on your behalf.

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