March 2005

ATTENTION PENNSYLVANIA EMPLOYERS:

Effective immediately, if you want to contest a claim for unemployment benefits at a referee hearing, you have to bring a lawyer with you.

The Pennsylvania Commonwealth Court ruled last month that non-lawyer advocates – including HR directors, managers, et cetera – cannot represent employers at unemployment compensation referee hearings. In Harkness v. Unemployment Compensation Board of Review, 2005 WL 245642, (Pa. Cmwlth. February 3, 2005), a seven member panel of judges concluded that to the extent that employer representatives act as advocates for their employers – including presentation and cross examination of witnesses, they are engaging in the unauthorized practice of law.

In Pennsylvania, with certain exceptions, a non-attorney may not represent parties before the Pennsylvania courts or administrative agencies. Recognized exceptions to this rule include Section 702 of the unemployment compensation law. Its regulations (43 P.S. §862 and 34 Pa. Code §101.41 respectively) permit an individual claiming unemployment compensation to be represented by a non-lawyer in an unemployment compensation proceeding. The employer in Harkness argued that this exception applies equally to corporate employers who are represented by a non-employee, non-attorney “duly authorized representative.” The Commonwealth Court disagreed.

Although the opinion of the court could be read as not applying to “employee representatives” of corporate employees, White and Williams has learned through the Pennsylvania Department of Labor and Industry that the Department, while appealing the Commonwealth Court decision, is interpreting the court’s opinion to require that all corporate employers appearing at unemployment compensation hearings be represented by an attorney. The Department has indicated that representation shall include appearing before unemployment compensation referees at hearing as well as preparation and submission of all documents required of employers when appealing a benefits decision by local Unemployment Compensation Service Center.

The Labor and Employment Group at White and Williams is available to represent your organization in all phases of the unemployment compensation process. To discuss this or other employment issues please contact Debbie Rodman Sandler at 215-864-6203 or Rick Grimaldi at 215-864-6350.