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Unemployment Compensation is not an Automatic Entitlement

Many potential clients who contact me assume that anyone who leaves a job for any reason is automatically entitled to receive unemployment compensation benefits. That is far from reality.  Unemployment compensation benefits are administered by each state, and the state in which one has worked, rather than the state in which one lives, makes a determination of entitlement to benefits, based on that state’s laws. I have been a seminar organizer and presenter for unemployment compensation issues in Pennsylvania, and this Firm has handled hundreds of matters dealing with all facets of unemployment compensation.

Unemployment compensation is sometimes a complicated process, and although an applicant doesn’t necessarily require the presence of an attorney at the hearing stage, it is highly recommended. One can generally receive unemployment compensation if one has been laid off, one has been terminated without committing willful misconduct, one does seasonal work, one doesn’t appear for work, or one feels they were forced to leave their job due to some action committed by an employer.

One generally cannot receive unemployment compensation benefits if one hasn’t developed enough working credits, one has broken a work rule or committed some other type of willful misconduct, one resigns without cause, one is working at another job for a certain number of hours a week, or one is operating an independent business.

The above conditions are the broadly set parameters, but they are subject to individual interpretation or a referee’s decision. At the application stage one of four things can happen:

  • The Agency decides that an applicant is eligible to receive benefits. If the former employer doesn’t disagree benefits will be received.
  • The Agency decides that an applicant is not eligible to receive benefits. The applicant can then appeal and request a hearing before a referee.
  • The Agency decides that an applicant is eligible to receive benefits, but the former employer disagrees. The employer can appeal and request a hearing before a referee. If a hearing is not requested by the employer, the applicant will receive benefits.

Let’s examine a typical situation when an applicant applies for unemployment compensation benefits which can result in loss of benefits:

Mary worked for a large company which was undergoing a reduction in force. Mary was given the option of accepting a severance package although it wasn’t certain that Mary would lose her job, and there was also the possibility that she could work in another department of the company if she lost her job. Mary accepted the severance package and applied for unemployment compensation benefits. Her former employer stated that she voluntarily accepted the severance package although her job had not yet been eliminated, requested a hearing, and Mary lost the hearing and benefits.

Remember that the hearing before the referee is a quasi adversarial process, and the legal concepts of presenting evidence properly, entering objections properly, cross-examining witnesses, raising legal arguments, etc. will be adhered to. The hearing is likely the only, and certainly the best opportunity that an applicant will have to make their case, because higher levels of appeal generally do not involve the granting of another hearing.

CLAIMS ARE DECIDED ON A CASE-TO-CASE BASIS. THEREFORE, IT IS A GREAT IDEA TO HIRE A LAWYER IF YOU WILL BE ATTENDING A HEARING.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady”

HHS Says California Violated Federal Conscience Protections On Abortion Coverage

This is from religionclause.blogspot.com which you can find here:

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights today issued a Notice of Violation (full text) to the state of California finding that the state violated federal law by making elective abortion coverage mandatory in all policies offered by insurance companies regulated by the state’s Department of Managed Health Care. A Christian church and a Catholic religious order filed complaints with HHS saying that California’s Mandate Letters to health care plans resulted in the religious organizations being required to offer their employees policies that cover abortions, in violation of the conscience provisions of the federal Weldon Amendment.

The Notice of Violation explains:

… [T]he only exemption California offered (to a health plan issuer) was limited to plans covering a narrow set of “religious employers” under California law. However, the Weldon Amendment protects from discrimination all plans that decline to cover abortion, without requiring any plan issuers, sponsors, or beneficiaries to have a religious character or have a religious reason for not providing or paying for such coverage…. [E]ven a categorical exemption of “religious employers,” as defined by California law, would have only been available to approximately 37% of those employer groups who, prior to the Mandate Letters, had health care coverage that limited or excluded abortion.

The Notice of Violation concludes:

If OCR does not receive sufficient assurance that California will cease requiring all health care plans, as a class, to cover abortion, or that it is willing to negotiate in good faith towards that end, OCR will forward this Notice of Violation and the evidence supporting OCR’s findings in this matter to the appropriate HHS funding components for further action under applicable grants and contracts regulations. Such referral may ultimately result in limitations on continued receipt of certain HHS funds in accordance with the Constitution and applicable Supreme Court case law.

HHS also issued a press release explaining its action which in part quotes the Director of HHS’s Office of Civil Rights:

We are putting California on notice that it must stop forcing people of good will to subsidize the taking of human life, not only because it’s the moral thing to do, but because it’s the law.

You can learn more about this issue here.

Templeton Project: Humor in Dialogue

Back in October 2015 I wrote about the inauguration of the Abington Templeton Foundation (see here).  The project is now underway (see here) and I will be posting our writing here.

Check out the latest piece entitled “Humor in Dialogue.”

See also:

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Humor is appropriate in apologetic dialogue and witness, but there are boundaries to it.  I suggest these guidelines:

  1. No humor is acceptable that is at the personal expense of the other individual or individuals or is meant to discredit them.  It is the world view that needs to be discredited and revised through new insight, not the person.  If the person is deceptive, the strategy will probably show without help.
  2. Disarming humor to prove a point is acceptable, but one should be careful not to insult another.
  3. Off-color jokes have no place.
  4. Illustrative humor to explain your Chrisitan perspective is appropriate. (See Matthew 5: 27ff and 19: 24–examples of hyperbole)
  5. Telling jokes can be good if they are pertinent to the point that is being made. They should never serve as a distraction.
  6. One shouldn’t seek to show that the other is a fool.  This will come to light by what the other person or persons say and do.  They do not need your help. (Proverbs uses the word fool, for those who are fools.  But, in the course of a dialogue one should refrain from its use, for it does not promote conversation).
  7. Humor should always serve to further defense of the faith and witness to Christ.
  8. Laugh with, never at another person.  (Though it may be good at times to laugh at ourselves for our own foolishness).
  9. In the Warner Brother’s cartoon “Robin Hood Daffy,”  Daffy Duck shows that he is an incompetent Robin Hood.  Throughout, Porky Pig in the role of Friar Tuck laughs at Daffy.  At one    point, Daffy says, It is to laugh” with a sour, ironic humor.  He obviously does not mean what he says.  At the end Daffy becomes a friar like Tuck rather than pretending that he is an effective Robin Hood, “Defender of the Poor.”  Was Porky’s laughter helpful (I don’t think he meant to be helpful).  We should use humor to help others gain insight, not to get a good laugh.  We would expect the same treatment.  (I must admit, the cartoon made me laugh, but it’s only a cartoon).
  10. We should never be patronizing, showing in our words and actions that we feel superior to another.  (Being contemptuous can backfire).

Always remember what the author of Proverbs says:  “The wise lay up knowledge, but the mouth of a fool brings ruin near.” (Proverbs 10: 14 ESV)

Michael G. Tavella

August 20, 2019

Saint Bernard of Clairvaux

Penny Wise and Pound Foolish

We all know that the phrase “penny wise and pound foolish” refers to people who do things to save money, but end up spending much more because they did not do a simple cost/benefit analysis. I receive many calls weekly from potential clients who, regardless of how much they earn, automatically say they cannot afford a modest retainer to proceed with their case. Others want a “guarantee” that the amount they pay for a retainer will gain them the results they want. I note that when the economy is not doing well, or the media is trumpeting bad economic news or employment figures, or mortgage foreclosures, that people are even more reluctant to spend on legal services, because they consider this to be “optional” versus “mandatory” spending.

Let’s explore the cost versus potential benefits of hiring a qualified law firm to represent you, by viewing the below Example.

Alan is earning $100,000 a year. He has been with his employer for 10 years. Well, ever since he returned from family medical leave after two months for surgery for a condition which was not work-related, he has been criticized for his work performance. That criticism has escalated from verbal to written warnings, and when he contacts me he has just been placed on a performance improvement plan. Alan asks me if I can guarantee that if I contact his employer he will be able to keep his job. When he hears that the majority of time this Firm can be of significant assistance to him, but we can’t guarantee results, he says he can’t afford a retainer. The end result is that Alan is fired, and that his employer alleges that he broke a work rule which led to his termination, and disputes his right to receive unemployment compensation. Alan represents himself at the unemployment compensation hearing and loses. Alan is therefore without a job, without a neutral job reference, without insurance benefits, and without unemployment compensation, all because he did not want to pay a retainer to a lawyer.

What I might have been able to do if we were retained.

I might have been able to allege some form of discrimination and keep Alan’s job for him. I might have been able to secure a severance package for Alan if indeed the employer was intent on terminating him. This package may have included salary, benefit continuation, and sometimes legal fees. I might have been able to have the employer lay him off instead of terminate him for breaking a company work rule. I might have gotten Alan a neutral versus a negative job reference for future employers. I might have gotten permission that Alan can represent that he was laid off or resigned so he can state that on future employment applications without lying. Even if I didn’t get Alan any additional funds, I most likely would have been able to negotiate an agreement which would have permitted him to locate other employment without a black mark on his record.

Can I guarantee that I could have accomplished all of these things? No, but I negotiate these matters regularly and my clients are usually pleased with the results. ALAN WAS THEREFORE PENNY WISE AND POUND FOOLISH. Stay tuned in this Blog for other examples of being penny wise and pound foolish in hiring a lawyer.

By: Faye Riva Cohen, Esquire on her blog “Toughlawyerlady”

Tennessee Passes Law Protecting Faith-Based Adoption/ Foster Care Agencies

This is from religionclause.blogspot.com which you can find here:

Yesterday, the Tennessee General Assembly gave final passage to HB0836 (full text) which bars denial of licensing or funding for faith-based child placement agencies. The law protects agencies that refuse to participate in placing a child for foster care or adoption in violation of the agency’s written religious or moral convictions or policies. According to AP, Gov. Bill Lee’s Communications Director says that the governor will sign the bill.

You can learn more about this issue here.

Templeton Project: Of Self-control

Back in October 2015 I wrote about the inauguration of the Abington Templeton Foundation (see here).  The project is now underway (see here) and I will be posting our writing here.

Check out the latest piece entitled “Of Self-control.”

See also:

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Self-control, or temperance, is one of the four cardinal virtues along with courage, prudence and justice that come to us from pagan philosophy.  It is found in the list of fruits of the Spirit in Paul’s letter to the Galatians (5: 23).  It is a virtue that pertains to keeping the passions and desires under control.  It bespeaks moderation.

Can we restrain our passions in our speech to others?  In the midst of dialogue and debate can we refrain from out of control  behavior.  This is a test for the man or woman who would be self-controlled.  To be unself-controlled is a great temptation. We do not need any coaxing to bad behavior.

In a discussion where there are high stakes (as religious faith always is), it is very tempting to call someone a name, interrupt, be accusatory, blame, distort, attempt to manipulate, make fun of, yell, insult, discredit another’s character, dismiss, and so on, and so on, and so on ad nauseam.

We must remember our identity as Christians.  We can pray that the Spirit give us a better capacity for self-control.  We can test our ability in our relationship with loved ones, especially our spouse and children.  In debate we can be emphatic and committed to our faith without being unself-controlled.

Paul writes,  “Every athlete exercises self-control in all things. They do it to receive a perishable wreath, but we an imperishable.” (I Corinthians 9: 25 ESV) Controlling our temper and anger in everyday relationships is a sign that we may do the same in our private and public apologies of the faith. Our discipline must be intentional with those we love, especially spouse and children. I have failed many times in this endeavor, but I also hope that today and tomorrow I will do better. We must focus on a discipline of moderation. The Holy Spirit will lead us to do this.

Michael G. Tavella

August 6, 2019

The Transfiguration

PA Superior Court Says QDRO’s Take Effect Upon Execution of Marital Agreement

Conway v. Conway v. City of Erie Police Relief and Pension Association, 209 A.3d 367 (PA Super. 2019)

Brief Summary of the Facts:

Michael Conway (“Husband”) and Julie Conway (“Wife”) were married on July 12, 1991 and separated in August 2007.  Husband was employed as a police officer and filed for divorce on July 28, 2009. The parties executed a Marital Settlement Agreement (“MSA”) on Aug. 19, 2016, that directed the parties to prepare, execute, and file a Qualified Domestic Relations Order (“QDRO”) to allow Wife to receive her marital share of Husband’s pension. At the time of the execution of the MSA, Husband’s pension plan stated, with regard to a QDRO, “a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.” A divorce decree was entered on Aug. 22, 2016, that incorporated the MSA. On Aug. 23, 2016, the municipality for which Husband worked amended the pension plan to read “a former spouse of a Participant shall not be treated as the spouse or surviving spouse for any purposes under the Plan,” (emphasis added). Wife submitted the QDRO to the pension plan administrator on Aug. 29, 2016, which denied the QDRO on the basis that as it was filed after the Aug. 23, 2016 pension plan revision and is inconsistent with the same. Wife filed a Motion for Entry of QDRO, which was denied by the trial court, prompting Wife to appeal to Superior Court.

Issue:

Did the trial court err by failing to enter the QDRO submitted by Wife to secure her post-divorce rights to Husband’s pension when the MSA and Divorce Decree were both filed/entered and in effect prior to the revision to the pension plan? Holding A QDRO is an order “which creates or recognizes the rights of an alternate payee to receive all or a portion of the benefits payable to a participant under [a pension] plan.” A QDRO merely implements the terms of a preexisting MSA and does not in itself create new rights or terms. In the instant matter, the MSA was entered and incorporated into a Divorce Decree before the pension plan was revised; therefore, as the QDRO only serves to recognize and implement settled rights, it is enforceable as the underlying MSA predates the pension plan revisions. The denial of the QDRO amounts to an unlawful ex post facto application of the revised pension plan. Based on the above, the court directed the QDRO to be entered.

Comments/Impressions:

The court also pointed out that the objective of the Divorce Code “is to effectuate economic justice” for the parties to a divorce. In the court’s estimation, to rule against Wife “would deny [her] the benefit she bargained for and would cause an unfair and severe injustice concerning the parties’ settlement of their existing rights” and would be “contrary to the goal of achieving economic justice.”

Originally published in the Pennsylvania Family Lawyer in Volume 41, Issue number 3 (Autumn 2019)

Templeton Project: Examples of Uncivil and Civil Speech

Back in October 2015 I wrote about the inauguration of the Abington Templeton Foundation (see here).  The project is now underway (see here) and I will be posting our writing here.

Check out the latest piece entitled “Examples of Uncivil and Civil Speech.”

See also:

_____________________________

Uncivil Speech

  1. Name-calling  (pinhead, jerk, bozo, idiot, moron, stupid, etc.)
  2. Attacks on character.
  3. Intentional distortion of opponent’s/opponents’ views and argument.
  4. Humor directed at the person of the opponent so as to cause shame or embarrassment.
  5. Monopolizing the discussion.
  6. Sloppy argumentation; attempts at obfuscation in order to win the argument.
  7. Return abuse with abuse.

Civil Speech

  1. Respect for the other no matter how much you disagree (Don’t call him fool.  Comment that his argument is unwise).  Address him/her respectfully.
  2. No derogatory references to the person’s character, in fact, no references to the person’s character.
  3. Carefully lay out the opposing party’s position, as you heard it, so that you are sure that you have it right.  Ask questions for clarification.
  4. Humor pertinent to the topic, but not to the embarrassment of the interlocutor.  Self-effacement is proper as long as it is not intended to manipulate.
  5. Giving the other person an opportunity to express his views and ask questions.
  6. Carefully laying out one’s argument in a clear and coherent way.
  7. Return respect for abuse.

A public dialogue should be well structured so as to help minimize abuses.

At a later time we will discuss one on one or small group conversations

 

Michael G. Tavella

July 22, 2019

Court Refuses To Examine Parties’ Need For Jewish Religious Divorce

This is from religionclause.blogspot.com which you can find here:

In A.W. v. I.N., (Sup Ct Nassau Cty NY, Jan. 2, 2020), a New York state trial court held that the 1st Amendment precludes it from looking beyond a wife’s sworn statement that she has, to the best of her knowledge, removed all barriers to the Husband’s remarriage. NY Domestic Relations Law §253 requires such a statement from a plaintiff in a divorce action, and also provides that the court may not look into any religious or ecclesiastical issue.  In this case, the husband sought a stay in entering a final judgment of divorce because the wife refused to appear before an Orthodox Jewish religious court and accept a get (divorce document) from the husband.  According to an affidavit from a rabbi submitted by the husband, the husband is prevented from remarrying without the wife’s acceptance of a get.  The wife contends, on the other hand;

the parties were not married religiously nor was there any religious ceremony. Therefore … since there was no marriage according to Jewish Law, there is no religious divorce to be had. The Wife states that she refused the Husband’s offers for a religious wedding ceremony because she wanted to avoid any religious divorce rituals. The Wife argues that in any event, the Husband is not a practicing Orthodox Jew.

The court said in part:

It would be a violation of the First Amendment of the United States Constitution for the Court to order the Wife to participate in a religious ritual when she did not agree to do so.

You can learn more about this issue here.

Finding Attorneys in Contempt for Clients’ Actions in Divorce Case

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do.

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do. The recent Pennsylvania Superior Court case of Farrell v. Farrell, No. 1424 WDA 2018 (Pa. Super), should serve as a cautionary tale for all attorneys to keep in mind when discerning how much involvement their clients should have in the drafting and serving of legal documents.

Farrell is a divorce matter that involved two represented parties, the husband and the wife. The husband initiated the divorce action against his wife who, for the first two years of the case, elected to proceed on a pro se basis. When it was time for the case to be advanced to a divorce master, the wife hired an attorney. In the months leading up to the divorce master’s hearing, the husband issued the wife informal discovery requests. The wife ignored the requests, which led to the husband issuing follow-up correspondence, to which, again, the wife provided no response. As a result, the husband filed a motion to compel the responses to the discovery requests. The trial court granted the motion, and gave the wife 20 days to comply with the discovery requests.

Instead of taking an active role in helping her client respond to the discovery requests, the wife’s attorney simply allowed her client to type up the responses herself, which the attorney then forwarded to the husband’s attorney, unedited. In her responses, the wife refused to disclose some information, declared some requests “N/A,” and leveled personal attacks upon the husband in others.

The wife’s pro se responses provoked the husband’s attorney to file a motion to compel, for sanctions and for attorney fees. The court scheduled a hearing on the husband’s motion three days after the responses were filed, as the master’s hearing was scheduled for four days after the responses were filed. As a response to the husband’s aforesaid motion, the wife’s attorney immediately filed her own motion to compel and for attorney fees.

At the motion hearing, the husband admitted that more documents were produced by the wife, but her responses were still inadequate. Furthermore, the wife’s attorney indicated that she had not prepared the discovery responses for the husband, but simply allowed her client to type up the responses where provided on her own. The court took note of when the wife filed her above-mentioned motion and found that it was filed for the sole purpose of trying to “equalize” the motion filed by the husband, and not for any actual legally cognizable purpose.

At the conclusion of the hearing, the trial court dismissed the wife’s motion and granted the husband’s motion, ordering that the wife may not produce any documentation not already produced in support of her own case. The court also found the wife’s attorney to be in contempt, ordering her to pay the husband’s attorney fees. The wife’s attorney filed for reconsideration and appealed this ruling to the Superior Court.

The wife’s attorney argued in both her motion for reconsideration and the appeal that she cannot be personally found in contempt as she was never actually ordered to do anything (only her client was) regarding discovery. To this end, she maintained that no evidence was ever produced demonstrating that she, personally, had any court order directing her to do anything, therefore there is no evidence that she disregarded a court’s order. She further argued that there was no evidence belonging to the wife that she had in her possession that was requested to be produced; therefore, she did not personally withhold anything from being produced in discovery.

As an initial matter, the Superior Court first noted that the wife’s attorney cited to no authority for the proposition that she cannot personally be held in contempt for her client’s actions or inactions. As a result, under established case law, her arguments, on that issue, were deemed waived as unsupported by authority.

Regardless, the court cited to Pa.R.C.P. 4019(g)(1) which states that “the court on a subsequent motion for sanctions may, if the motion is granted, require the … attorney advising such conduct … to pay the moving party the reasonable expenses, including attorney’s fees …”

Based on Pa.R.C.P. 4019(g)(1), the court determined that the wife’s attorney’s decisions to allow the wife to personally produce deficient and attacking discovery responses without the attorney offering any input or edits, did not comply with the trial court’s order to compel, and her filing of what appears to be a retaliatory motion to compel are all adequate grounds to hold the wife’s attorney in contempt of court.

So, while it is rare, practitioners should always be cognizant of the fact that they could be held in contempt of court for the actions of their clients, even if they were not personally directed by the attorney and there is no order directing the attorney to do anything.

James W. Cushing is a senior associate at the Law Office of Faye Riva Cohen and is a research attorney for Legal Research Inc.

Originally published in The Legal Intelligencer on December 16, 2019 and can be found here.

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