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NBI SEMINAR MATERIALS: Human Resource Law From A to Z: Unemployment Compensation

I  had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute.  The subject was “Human Resource Law From A to Z” and I had opportunity to speak on Unemployment Compensation.  I was joined by other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Linked below are all the materials I wrote for this seminar.

Thanks!

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A Collection of Unemployment Compensation Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of unemployment compensation law issues and legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Articles:

Blog Posts:

Suit Challenges Constitutionality of Tax Code Parsonage Allowance

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

“In a lawsuit filed this week, the Freedom From Religion Foundation is again challenging the constitutionality of the Internal Revenue Code’s parsonage allowance.  The complaint (full text) in Gaylor v. Lew, (WD WI, filed 4/6/ 2016), contends that Section 107 of the Internal Revenue Code–which allows clergy to exclude from taxable income a housing allowance paid as part of their compensation– violates the Establishment Clause.  The suit was brought by two FFRF officers who also received housing allowances.  One of the plaintiffs is an ordained minister who in prior years when employed by a church was able to claim the allowance.  In 2014, the 7th Circuit dismissed a similar suit on standing grounds because plaintiffs had not sought to exclude their FFRF allowances on their federal income tax returns or claim a tax refund. (See prior posting.) This time plaintiffs did file amended returns seeking a refund of taxes paid on their housing allowances. FFRF issued a press release announcing the filing of the lawsuit.”

You can learn more about this issue here.

9th Circuit: Denial of Exemption For Use of Cannabis Does Not Impose Substantial Burden On Religious Exercise

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

In Oklevueha Native American Church of Hawaii v. Lynch, (9th Cir., April 6, 2016), the U.S. 9th Circuit Court of Appeals held that a church and its founder were properly denied an exemption from federal laws that prohibit the possession and distribution of cannabis. Under RFRA, denial of an exemption does not impose a “substantial burden” on plaintiffs’ exercise of religion because the primary sacrament of the church is peyote.  Plaintiffs consume cannabis only as a substitute. They do not claim that peyote is unavailable or that cannabis serves a unique religious function.

You can learn more about this issue here.

Business Owner Unsuccessful In Suing Churches That Opposed New Strip Club

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

“In Harrington v. Hall County Board of Supervisors, (D NE, March 31, 2016), a Nebraska federal district court dismissed a number of claims brought by the owner of an adult entertainment company against two churches that circulated a petition opposing attempts to open a strip club in Hall County, Nebraska. The court also dismissed claims against a director of one of the churches.  The adult entertainment company owner alleged that the churches engaged in a conspiracy to adopt and enforce an unconstitutional zoning resolution. Plaintiff also alleged violations of the antitrust laws, defamation, tortious interference with business relationships, infliction of emotional distress, and negligence.  The court additionally rejected the claim that individual members of the County Board of Supervisors violated the Establishment Clause when at a public hearing they thanked supporters of the petition for supporting Christian values.”

You can learn more about this issue here.

Qualified Immunity For Commissioners Asking Religious Questions To Constable Candidate

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

“In Lloyd v. Birkman, (WD TX, April 1, 2016), a Texas federal district court held that members of the Williamson County (Texas) Commissioners’ Court enjoyed qualified immunity in a suit by an unsuccessful candidate for County Constable.  The position was normally an elected one, but the current Constable resigned and the next election was over one year away. Thus under state law the Commissioners had the power to appoint a new Constable to serve until the next general election.  During interviews for the position, Commissioners asked candidates about their church membership, views on gay marriage and abortion, and political ideology. Plaintiff contended that these questions violated his rights of free expression and association, as well as the free exercise and establishment clauses. The court, however, concluded that there was not “clearly established law” that this line of questioning was improper in the context of private interviews for an interim appointment to a normally elective position. (See prior related posting.) ”

You can learn more about this issue here.

Refusal To Enter Requested Surname on Birth Certificate Did Not Violate Free Exercise Rights

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

“In Nix El v. Williams, (D DC, March 30, 2016), the D.C. federal district court rejected a claim by the father of a newborn daughter that his religious rights were infringed when D.C. Department of Health officials refused to list his daughter’s surname on her birth certificate as “Nix El” rather than as “Nix”, the parents’ surname. D.C. statutes require the surname to match that of a family member. Plaintiff, who is a member of the Moorish Science Temple, contended that he wished to add “El” to his daughter’s name because it is a title of nobility. In the suit, plaintiff had asked for declaratory and injunctive relief, compensatory damages of $136 million plus punitive damages of $1 million per day for each day his daughter did not have a birth certificate.”

You can learn more about this issue here.

Montana Court Issues Preliminary Injunction To Allow Parochial School Participation In Tax Credits

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

“According to The Missoulian, in Montana on Thursday, a state trial court judge issued a preliminary injunction barring the Montana Department of Revenue from enforcing its rule that excludes religiously affiliated schools from participating in the state’s new School Contributions Tax Credit law. (See prior posting.) The Department of Revenue takes the position that participation in the school aid program by religiously affiliated schools violates state constitutional bans on that prohibit direct and indirect payments or appropriations to religious or sectarian schools. ”

You can learn more about this issue here.

Unemployment Compensation Ruling Cannot be the Basis for Collateral Estoppel

Many cases sounding in employment law involve other related parallel matters like unemployment compensation. Applicants for unemployment compensation, and their employers, engage in a legal administrative process wherein they make allegations and, fairly frequently, have to testify on the record at a hearing before a referee which can be reviewed by the Unemployment Compensation Board of Review and Commonwealth Court of Pennsylvania. Based on the evidence presented, findings of facts and law are made during the unemployment compensation process relative to the applicant’s eligibility for unemployment compensation benefits.

The legal doctrine of collateral estoppel, sometimes called “issue preclusion,” serves to prevent a litigant from re-litigating issues which have been the subject of a finding of fact and/or law in a prior litigation. The recent case of Mathis v. Christian Heating and Air Conditioning, Inc. 91 F.Supp.3d 651 (U.S.E.D.PA 2015) addresses whether findings of fact and/or law during unemployment compensation litigation can serve as the basis for collateral estoppel in court.

In Mathis, the District Court finds itself ruling upon what is, in effect if not in name, a motion to reconsider its ruling granting a motion to dismiss. The Plaintiff in Mathis is a self-described atheist, while the Defendant, Christian Heating and Air Conditioning (“CHAC”), is a company owned and operated explicitly as a Christian company.

As part of its work rules, all employees of CHAC are obliged to wear an identification badge with CHAC’s mission statement which reads as follows: “This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the lord [sic].” Plaintiff alleges that people from CHAC would regularly make comments to him about his lack of religious belief and insist he attend church. Further, as it conflicted with his atheistic beliefs, he covered the above-quoted mission statement on his identification badge with a piece of tape. According to Plaintiff, his superior at CHAC informed him that the mission statement cannot be covered and refusing to remove the tape would result in his termination. Plaintiff refused to remove the tape and was promptly terminated.

Plaintiff, upon termination, filed for unemployment compensation benefits. An employee who voluntarily quits his employment is ineligible for unemployment compensation benefits. During the unemployment compensation process, a finding of fact was made by Unemployment Compensation that CHAC told Plaintiff that he could remove the tape on his badge and continue his employment, or leave and terminate his employment relationship with CHAC. Plaintiff then chose to leave instead of removing the tape. As a result, it was found that, for purposes of unemployment compensation, Plaintiff’s termination from CHAC was the result of Plaintiff’s voluntary decision to quit his employment with CHAC.

Plaintiff also filed charges against CHAC with the Equal Employment Opportunity Commission and Pennsylvania Human Relations Commission on the basis of employment discrimination based on religion which resulted in Plaintiff receiving his right to file suit against CHAC in federal court, which he did, giving rise to the Mathis matter.

CHAC argued that Plaintiff’s discrimination claims were all barred by collateral estoppel as these same allegations were made in the context of the unemployment compensation litigation which made specific findings of fact upon which a ruling was entered against Defendant. Specifically, CHAC filed a motion to dismiss Plaintiff’s claims on the basis that the unemployment litigation found he was not terminated due to religious discrimination but, rather, he voluntarily quit his job with CHAC. Based on the collateral estoppel argument, the Court granted CHAC’s Motion to Dismiss in part, ruling that Plaintiff was barred by collateral estoppel from re-litigating issues essential to his failure to accommodate his atheism claim. Plaintiff also made a retaliation claim (which is a separate issue from that described herein) against CHAC which survived the motion to dismiss.

After the Court’s ruling on the aforesaid motion to dismiss, Plaintiff discovered a Pennsylvania law which directly applied to his case as described above. As a result, Plaintiff filed what was, in essence (though not in name), a motion for reconsideration in light of the newly discovered law.

Plaintiff uncovered 43 P.S. Section 829 which reads as follows: “No finding of fact or law, judgment, conclusion or final order made with respect to a claim for unemployment compensation under this act may be deemed to be conclusive or binding in any separate or subsequent action or proceeding in another forum.”

To put it simply, the above-quoted law specifically states that any findings of fact or law in unemployment compensation litigation simply cannot be used as the basis for a collateral estoppel argument and/or defense.

In light of the clear terms of 43 P.S. Section 829, the Court reconsidered its granting of CHAC’s motion to dismiss by reversing its decision and denied it in toto to allow all of Plaintiff’s claims against CHAC to move forward.

Originally published on February 24, 2016 in Upon Further Review and can be found here.

The (Unemployment Compensation) Benefits of Not Minding One’s Own Business

The discernment of who is or who is not an independent contractor for the purposes of unemployment compensation has become more refined per the recent Commonwealth Court matter of Staffmore v. Unemployment Compensation Board of Review, 92 A.3d 844 (Pa.Cmwlth. 2014).

The Claimant for unemployment compensation benefits went through a series of appeals and reversals until he found himself before Commonwealth Court. The Claimant was found ineligible for benefits by the Unemployment Compensation Service Center, but that decision was reversed after an appeal to, and hearing before, an unemployment compensation Referee. The Employer appealed to the Unemployed Compensation Board of Review which reversed the Referee’s decision. The Claimant filed for reconsideration which resulted in reversal of the Board’s decision. That decision was reversed after the Employer filed for reconsideration. However, after reviewing the case again, the Board found in favor of the Claimant, which led to the Employer appealing to the Commonwealth Court.

The Employer is a staffing service which provides workers to agencies for the care of children. Claimant worked for the Employer as therapeutic support staff. He was free to accept or reject clients, he signed an independent contract agreement, he was supervised by a behavioral specialist, who was not an employee of Employer but developed a treatment plan Claimant was obliged to follow. Claimant only worked seven (7) hours per week providing services for a single client. Claimant worked in the education field while he also worked for the Employer. Eventually, Claimant’s client no longer needed further services and Claimant subsequently advised the Employer that he would not accept any further assignments from the Employer.

It was uncontested that Claimant was free from the Employer’s control. The only issue before the Court was whether Claimant was customarily engaged in an independently-established trade, occupation, profession and/or business. If he was, he would be ineligible for unemployment compensation benefits as he would be an independent contractor. Of course, the Court made it clear that unemployment compensation law is to be construed and applied liberally in order to ensure the broadest possible availability of benefits.

In its review of the case law, the Court noted that a worker is an independent contractor only if he is in business for himself. To that end, he must be customarily engaged in an independently established trade, occupation, profession, or business. The Court was clear that the Employer bears the burden to supply evidence of Claimant’s engagement in an independent business.

Although the Claimant was free from the control of the Employer, he testified that he was never, at any relevant time, customarily engaged in the business of providing therapeutic support. Claimant testified that his primary source of income, and indeed his chosen field, was working in education, not as therapeutic support staff, and never held himself out as being available for employment by anyone else other than Employer. Significantly, the Employer provided no evidence that Claimant provided comparable services to any other business or entity.

Based on the above, the Court found that the Employer simply did not provide sufficient evidence to prove that Claimant was engaged in an established business; however, the Court was concerned that Claimant testified that he appeared to have quit his position with the Employer. Consequently, the Court ruled that while Claimant may be eligible for benefits as he was not self-employed, he could be ineligible due to having voluntarily quit. As a result, the Court remanded the case back to the unemployment compensation referee to elicit more information on the circumstances of Claimant’s termination of his employment with the Employer.

Originally published on December 28, 2015 in Upon Further Review and can be found here.

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