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Poor Performance Is Not Willful Misconduct under Pennsylvania Unemployment Law

Posted by attorney John Gallagher

Well, the title says is at, but let me say it again: You cannot be disqualified from getting unemployment on the grounds of willful misconduct because your employer deemed you a poor performer. That does not, however, stop many employers from trying to beat you on your claim for unemployment under such circumstances. There are many angles companies try to take in poor performance cases: 1) the employee lied about their qualifications when they applied for the job; obviously, says employer, this crappy employee could not have had all of the experience they claimed to have; 2) the employee just wasn't trying hard enough, and was not committed to the job. Usually, though, employers recognize that those defenses are useless. So, they resort to the number one tactic employers use to try and win an unemployment case against a perceived poor performer is: THEY LIE ABOUT WHY THE EMPLOYEE WAS FIRED. They essentially fabricate a reason they believe will qualify as willful misconduct and present that to the Referee at the Hearing. By the time their done, the Referee thinks your Charlie Sheen-esq (or Lindsay Lohan, as the case may be), and you lose the case! Employers routinely lie at Hearings under oath?! I know, I know, that sounds harsh. And maybe, after I do my next 300 hearings, I will realize that my observations to this point are all wrong. But I doubt it. Employers do unemployment hearings all of the time, and they take them seriously. Employees almost never do them, and often figure that justice will be served in their favor. Then, they get stomped and call an attorney to help file an appeal from the Referee's decision "where all of the lies will be proved." Too late, an appeal from a Referee's decision is based solely upon the record created at the Hearing. That's it - finito. Charlie Sheen it is. That's why, in my view, employees should consider speaking with an unemployment lawyer before the Referee's Hearing is over. John A. Gallagher, Philadelphia Unemployment Attorney

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