UC claims being witheld in PA

[glenntwo]

I filed for UC benefits with the state of PA in early November. I am now on my fourth bi-weekly filing period and still have not seen any benefits deposited to my account. The state is claiming that I may be ineligible because I am self-employed, although I am not. They also claim that they cannot make a determination because the employer in question refuses to answer their correspondence.

I work primarily in Philadelphia. Mostly its one week on and one week off. And when I am off I go down to Washington DC and do the exact same job that I do in Philadelphia. Obviously I do this because my primary job is intermittent, but the two jobs are exactly the same, just in different venues.

The only differences in the two places of employment are this: In Philadelphia I am paid via a standard w-2 with taxes and such taken out of my check. In DC, it it a different company and they pay me via 1099.

There are two different things going on here:

1. Because of this 1099, the state is saying that I may be self-employed and thus ineligible for benefits. I find it odd that they say this, since last year when I was laid off at the same time (I get laid off from both jobs in the winter, and I am recalled in the spring) PA UC was more than happy to process my claim. As a matter of fact, the year previous I had claimed UC in Texas and PA insisted I file with them instead. I am not self-employed. The conditions of my employment are virtually identical in both locations, the only difference being the method of payroll used. And even if I was, it's a moot point, since there is a section in the PA Unemployment law covering self-employed individuals that clearly indicates that they are eligible.

2. PA UC has tried to contact the employer in DC because of my benefits claim. the company has not responded. At the same time, PA UC has asked me to provide wage data concerning my claim (1099, direct deposits to my checking) which I have provided them with, not once, but twice now. According to PA UC law, the employer has 15 days to respond to a claim from the state and if they don't, then the examiner can use the available data to make a decision. The examiner refuses to do this, even though the time since my initial claim has been approx. 48 days. I find it hard to believe that the 15-day time limit has not elapsed during that 48-day period, since common sense tells me that the correspondence would have been sent to the DC employer right after I made my initial claim.

I have gone around and around on this for almost 8 weeks now with PA UC. In almost a dozen phone contacts I have been able to get past the customer service representative exactly twice to speak to a supervisor, and that was in the early stages of the claim. Lately they have just flat refused to let me speak with anyone in a supervisory position. There are a lot of other things going on, like not returning calls, not acknowledging correspondence after agreeing to do so, misinformation by customer service reps, etc. Just today, they told me that the examiner was looking at my file and would contact me as soon as he was done with it. I asked to speak with him and was told he was too busy to talk to me. Not surprisingly, I am still waiting for that return call.

The bottom line on all of this is that they are looking for ways to prove that I am self-employed, so they can deny benefits. So, four things are happening here:

1) they are working against me instead of as an advocate, which is what I thought UC was all about.

2) they are trying to claim that I am self-employed, which I am not, and anyway the point is moot because there is an existing clause in the law that says I would be eligible anyway.

3) the claims examiner that is "judging" my claim has tried to correspond with the company in question and got no response. Instead of following the law and using the available data, he has decided to sit on the file until either the employer responds, or I give up and stop making claims. I don't know about the first, but I can **** sure tell you that the second is not going to happen.

4) in the 10-12 phone conversations I have had with various CSRs at PA UC, I have by and large asked them the same questions over and over again and either gotten differing answers or no answers at all. This also was the case with the supervisors I spoke with. Apparently no one at this regional office knows anything about their job. One person could not even tell me what time the office opened in the morning. Well, actually he did. And he was only off by one hour.

There is one other thing and I think it may be driving all this somehow. I work in Philly and DC but I live in Texas. Right now I am about 2000 miles from this UC regional office trying to do battle with them over the phone and fax. I think they figure that at some point I will just give up. I also think that they figure they have the legal high ground, since it's not likely I will go to Philly to initiate legal action, and it's highly unlikely that a labor lawyer in PA will take this case over the phone.

So, does anyone have any idea why this might be happening? I am at my wits end here and I cannot seem to get this issue escalated past the lowest levels. The PA UC website offers no information for any kind of service complaints or any kind of ombudsman to intervene in an issue like this. I have no idea where to look now to get this resolved. If there are any PA lawyers on here that know about this stuff I would certainly appreciate their input.

Thanks and Happy New Year to all.

[Pattymd]

The investigator working your claim has no "agenda" here; he's not trying to find a way to "deny benefits".

If you want to get an attorney working on your behalf, feel free.

[glenntwo]

Hookay...now that we've gotten the troll out of the way, does anyone have anything to add that might be helpful?

BTW, thanks for the advice on getting a lawyer. I would have never figured that one out on my own.

[cbg]

You're doing a really good job of convincing the regular responders here to bypass your post. Patty is not a troll; she is a well-respected member of the forum with a lot of experience in PA unemployment. You would do well to pay attention to her.

The UI investigator has no reason to look for reasons to deny you; however, neither is he supposed to be your advocate. If you thought that, you were wrong.

Your post is about four times too long and you've already made up your mind what the answer is, so I'm not sure what information you want from us.

[Betty3]

Agree/concur with cbg.

[glenntwo]

Well I certainly apologize, but if Patty would have read my post she certainly would have been able to deduce that I have not been able to get any kind of determination from the state UC that she works for. Since I don't have a determination of whether or not I am eligible, I cannot know what the next step is that I have to take. With the examiner sitting on this file I have no way of escalating this mess further up the appeals ladder or any other administrative ladder for that matter. I am in limbo until this person rules one way or another. Thus, the advice to get a lawyer not only is useless, it sounds sarcastic and condescending in the way it was stated.

I also apologize if my post is too long, but sometimes complicated things take long explanations. I would assume that people in the legal profession would understand that but I guess I was mistaken.

As far as an agenda by the examiner, I agree I may be wrong, but there are several things going on in the background that indicate otherwise, and I am not the only one who thinks this. I would post them here, but I am trying my best to be brief.

I do not have a preconceived notion of what is going on with PA UC. All I know is that two identical claims over the course of two years are being handled in two completely opposite ways, for no apparent reason. I also know that in repeated requests for information from various employees at PA UC, I have essentially been stonewalled. Maybe I didn't make that clear, so I also apologize for that.

I am looking for and would appreciate constructive advice, but "get a lawyer" isn't it, especially in light of the information I originally posted. I do assume it's out there somewhere, what with the internet being a big place and all, but apparently I have to find a way to communicate it in ten sentences or less.

There are several other things that I could point out but again, in the interest of brevity, I won't.

I truly am sorry to have wasted your time and promise I won't bother with this site anymore. Have a Happy New Year.

[CAIW]

With the "pre conceived" thought the op won't be reading this...

I don't know of a single message board where you see a slot to deposit your coins, or ATM card for the information you are requesting. The only "fees" you pay here are those you "contribute" to your ISP.

After the rhetoric you posted, your main question comes down to...So, does anyone have any idea why this might be happening?

I have gone around and around on this for almost 8 weeks now with PA UC....There is one other thing and I think it may be driving all this somehow. I work in Philly and DC but I live in Texas. Right now I am about 2000 miles from this UC regional office trying to do battle with them over the phone and fax. I think they figure that at some point I will just give up. I also think that they figure they have the legal high ground, since it's not likely I will go to Philly to initiate legal action, and it's highly unlikely that a labor lawyer in PA will take this case over the phone.

I won't go into cut/paste all the unnecessary info in your post... most of which is not relevant to your situation. Surely you can understand the objection to being four times the length necessary.

As to your employment status... that actually IS a consideration. Being provided W-2 vs Form 1099 is NOT merely a matter of payroll... but does define your employment status.
I don't know the PA code on UC... however I have never seen any provision whereby a "legally self employed" person is eligible for UI benefits. If that were the case, WHY would an employer opt to pay by 1099. UI premiums, right up there with WC are among the highest costs to every employer.

Try to keep in mind though, there are always 3 sides to every equation, yours, "theirs" and the way things actually are. The only "facts" here are yours, with a lot of additional "wordage".

Good luck to you.

[marbillw]

I don't understand the harsh treatment of a new poster looking for help. Do you really think that there are not people with attitude working for UI ? I have had this happen to me , and I know it happens in all areas of employment. As far as not being an advocate for the unemployed, then what is their jobs? Is it not to help people in need ? Don't we the tax payers pay their wages ? Why not just give the poster an idea what he can do. I just don't understand the attitude towards this poster right from the start. Sorry if I hurt someones feelings here. Where is the help ?

[CAIW]

As far as not being an advocate for the unemployed, then what is their jobs? Is it not to help people in need ? Don't we the tax payers pay their wages ?

Why do people think "taxes" pays the bill for everying.
UI in most states is user funded...meaning the EMPLOYER pays the fees/premiums to the program. Not the employee.
Those working at the UI board/commissions are there to administer the program. Not advovate for either side. It isn't a "fight", you are either eligible under the rules and definitions, or not. Simple. THere is a dispute resolution process if you disagree with a UI determination. You go to a hearing with ALJ. Again, simple.

Why not just give the poster an idea what he can do. I just don't understand the attitude towards this poster right from the start. Sorry if I hurt someones feelings here. Where is the help ?

There are complications in this thread. One, more than one state, two, employee/self employed status.
Three... the OP lives in TEXAS.

The advice to retain legal counsel...IS the 'help', and likely the best available from a message board.

What would be your suggestion to " does anyone have any idea why this might be happening?...in a mind reading capacity of course....?

[Pattymd]

To correct, PA IS one of the states where the employee pays a portion of UI; .5% of subject wages with no max. However, it is a VERY small percentage of the total taxes AND serves only to make the benefit amount a bit larger than in similar states. It does NOT have ANYTHING to do with eligibility.

[glenntwo]

Folks I appreciate your interest in this issue, and again I do apologize for participating in a flame war. It wasn't my intention; I merely am seeking a way to address the issues I am having with PA UC at this time.

There are several issues involved here, so in the interest of brevity I am only going to address one. It may or may not be the most important issue, but one thing it does is illustrate that something was amiss, right from the start.

In 2009 I was employed by the same two companies involved here. The one in Philadelphia and the one in DC. At the end of my work year I applied for UC benefits, just as I had in the previous year, with the state of TX. Texas did their legwork and informed me that the state of PA preferred that I file through them, since the bulk of my wages were earned in PA. Indeed, the interviewers in both TX and PA told me that I would be eligible for a larger benefit in PA than if I filed in TX, so it would be to my advantage to file in PA. So that's what I did.

So, I went through the on-line app process at PA.UC, and as is standard procedure I went through the initial telephone interview, where the interviewer verified my identity, my work related bona fides and all the other things that are necessary to determine eligibility.

One of the questions asked was, "Do you have any other sources of wages other than what we are showing for you here in PA?" Since I am compelled to be truthful about it, I pointed out that I work for a company in DC, in the same capacity as my job in Philadelphia, but for whatever reason, your wage search doesn't reflect that. During subsequent questioning I told the interviewer that the only difference in how the two companies operated was in the manner that they pay me (w-2 v.1099). I then said that I did not know if this would affect my benefit in any way, but those were wages I had earned and however the situation played out was fine with me.

The interviewer then stated that it was likely that the wages under a 1099 would not be eligible to be calculated in the benefit I was to receive, but that a subsequent investigation would reveal whether or not that was the case. She then stated that my weekly benefit would $xxx per/wk. and that if the wages from the 1099 were eligible, an adjustment to my weekly benefit would be made. I distinctly remember asking, "Will this delay my receiving benefits in any way?', and the interviewer said no, that I would start receiving benefits for my PA wages, and if there was an adjustment to be made it would be made on the fly, so to speak.

So we finished up the interview, and a couple days later the wage determination notice turned up in my mailbox, I did my bi-weekly filings, and everything went off without a hitch.

The also mailed me a questionnaire about appealing the wage situation in DC, which I promptly filled out and returned to them. I went through the winter without there being any adjustment or reimbursement to my original determination, so I naturally assumed that the 1099 wages were not eligible and never again gave any thought to it.

Now it is 2010, and I still work for the same two companies, and other than a difference in total wages and dates of re-hire and lay-off, I make what is basically an identical claim to the one made in 2009. Again, during the phone interview I disclose the situation in DC because it doesn't show up on their records, and again I am told that a determination will be made based on my PA wages and then, if necessary, and adjustment will be made concerning my DC wages. I let the interviewer know that the previous year the claim from DC never resulted in any benefit adjustment, and that I didn't expect anything to change on that front.

A few days later I get my Benefit Determination in the mail for $xxx for PA 2010 wages, just like in 2009. So I sit back and wait for my benefits to be deposited into my checking account, just like last year. I am working under the assumption that all was the same as 2009; that I would file bi-weekly, and when I eventually returned to work in the spring I would contact them and let them know and that was that. Of course when the deposits were due, nothing happened. So I checked the website, found that my determination status was still up in the air, and got in touch with PA UC to find out what the delay was. That is when I found out that there were all these other things going on that I had no idea about. This was apparently just the tip of the iceberg.

Any reasonable person would look at this and say that the claims are identical. So why is it that the PA UC is treating this claim differently from the previous one?

I have a lot more concerning the whole issue of whether or not I am "self-employed", and whether or not that is even relevant, as well as information about how the issue of reports from the employer in DC were handled. If a you folks I are interested, I will post them later.

Thank you for your time and interest.

[CAIW]

I have a lot more concerning the whole issue of whether or not I am "self-employed", and whether or not that is even relevant, as well as information about how the issue of reports from the employer in DC were handled. If a you folks I are interested, I will post them later.

It great that you are being truthful. However... you need to seperate the claims between PA and DC. There are TWO employers...one (PA) has paid the contribution to the UI system, the other (DC) apparently has not. The DC wages, whether or not 'legal' with a 1099 are not counted in your PA calculations. You did not work for the PA employer in DC, the PA employer paid no wages for the work performed in DC, and the 2 employers are not related. Your 2009 claim did not include the DC wages.

That may well be a souce of the 'snag' in your claim. That employer may have been paying you "illegally" as a self employed individual, and UI contributions are required, as well as penalties, your portion of FICA taxes and other possibilities this employer is not looking forward to. A can may have been opened and you aren't being paid benefits until it's sorted out. Don't know.
It's not your employers decision to pay you under a Form 1099 for 'convenience", there are strict IRS rules and definition as well as most state tax boards that define "self employed" persons. And, those rules may vary by industry. You cannot be a "contract laborer" of any definition and be paid "wages".

As for myself...you needn't post further details of the DC issues.
Good luck to you.

[glenntwo]

I see what you are getting at, but there are things I can do and can't do when filing a claim, whether it's in PA, DC, TX, or in any other state. I can only make a legal claim in one state and the claim I make has to include wages earned in any other state. This is why DC is in play. I know this because three years ago when I filed in TX, I was working in four other states including PA and DC, and all of the wages in those states had to be factored in. Truth is, about the only place I haven't worked is in my home state.

Also, I cannot legally file in two separate states at the same time. I can't file in PA, and then turn around and make a claim in DC. Likewise, I can't file in TX, because I have a claim open in PA. So I am stuck. I suppose it would be possible to to make a claim in DC or TX if the claim in PA is denied, but as long as I have no formal determination from the examiner/investigator in PA, my status cannot be changed. I have an open claim in PA until PA decides otherwise.

As to the legality of the company in DC paying me in the manner they are? Yep, if they aren't out and out breaking the law, they are stretching it to the breaking point. That's a matter for DC DOL to deal with, not me. They have to enforce their laws and obviously they either aren't, or aren't aware that the law is being manipulated in this way. Matter of fact, it is likely I will deal with some form of retaliation from the company next spring, just for getting them involved in this mess. I'm not worried about, since I have dealt with stuff like that before and I know how to fight back when threatened. I won't detail the situation, but it's a battle I am more likely to win than lose, since I represent a dollar figure to them more than anything else. And no, I am not "self-employed" or a "contract laborer", or a sub-contractor or any other term anyone wishes to choose for 1099 status. If I were an "independent contractor" or anything similar, by law I would have to have a federal Employer Identification Number"" (EIN), probably a DBA for each state I work in, and I would have a written contract, which would be subject to negotiation between myself and the company. None of those things are the case in DC. In DC I am scheduled, paid, and regulated by the company, just like the other 70 or so people I work along side there. I work and they pay me. Simple. I cannot negotiate my compensation, conditions of employment or anything else. It is an employer-employee relationship, in every sense except for the bookkeeping. The company is liberal about letting me make my own decisions regarding any scheduling conflicts with other companies, as is the company in PA, but that is an informal agreement and they could, at any time demand 100% attendance from me, which of course would not be acceptable and force me to find another city to work in. They won't do that because of the nature of the business, and also my ability to generate revenue for them, but if they wanted to play hardball, they could.

So yes, DC is a big part of the problem here, at least to the PA people. They consider it "self-employment", which it is not. But what they refuse to recognize is that their own Unemployment Compensation Law states that self-employment does not disqualify a person from UC. I can link to the passage in the law, found on their website, that states this in no uncertain terms. So whether or not I am self-employed in DC, TX, PA, FL or even Mars is irrelevant.

Here is a copy-and paste from the PA UC website located under "ARTICLE IV-
COMPENSATION" of the Pennsylvania Unemployment Compensation Law:

Section 402.4. Eligibility of Officers of a Corporation Deemed to be Self-Employed Persons.
(a) Notwithstanding any other provision of this act, an officer of a corporation deemed to be a self-employed person because he exercised a substantial degree of control over the corporation and who becomes unemployed due to the fact that the corporation enters into involuntary bankruptcy proceedings under the provisions of Chapter 7, Title 11 of the United States Code shall be entitled to receive unemployment compensation under this act: Provided, That the wages paid to the officer of a corporation deemed to be a self-employed person were mandatorily subject to this act.

(b) Unemployment compensation shall be paid to an officer of a corporation deemed to be a self-employed person, who is eligible under the provisions of this section, in the same manner and to the same extent as unemployment compensation paid to any other eligible claimant under the provisions of this act.

(402.4 added July 21, 1983, P.L.68, No.30)

I believe paragraph (b) pretty much says it all. Nothing else I have found in section IV changes the context of this graph.

[glenntwo]

Just to let everyone know, I have been in my line of work for over a decade now, and have worked all over the country. I am 51 years old and have neverat any time in my working life had need to collect UC benefits until three years ago. My earnings have been severely affected by the current economic conditions, just like millions of other folks all over the planet. I simply am not making the kind of money that I have in the past, when I neither needed, nor cared about collecting an unemployment check during my off-season. I make a nice tidy living a by working my tail off in a job that most people would refuse to even try. I am not getting rich, by any means, but because of what I do, I am able to have a quiet, unpretentious home life to come to after months and months of 7-day work weeks, thousands of miles from that home. I am not trying to scam or outsmart anyone here or at PA UC. I am just making a legal claim, something I believe have a right to make. I don't want to this, but current economic conditions force me to.

[cbg]

Who accused you of trying to scam anyone? Not even the UI commission has said this. Just because they're investigating what the appropriate classifications appear to be does not mean they're accusing you of any fraudulent activity, despite your apparent belief that they should simply give you whatever you ask for.

[CAIW]

The only reason the money you are paid in DC for the work you perform is because you must certify elgibility for UI on a weekly basis, including ANY money you earn. Where ever that money is earned.

As to your UI for "self employed" individuals...

(b) Unemployment compensation shall be paid to an officer of a corporation deemed to be a self-employed person, who is eligible under the provisions of this section, in the same manner and to the same extent as unemployment compensation paid to any other eligible claimant under the provisions of this act.

(402.4 added July 21, 1983, P.L.68, No.30)

I believe paragraph (b) pretty much says it all. Nothing else I have found in section IV changes the context of this graph.

I don't believe you have read this statute correctly.
Section 402.4. Eligibility of Officers of a Corporation Deemed to be Self-Employed Persons.
Are you in fact an "officer of the corporation" ?
If not... that nor any other section you may cut/paste or refer to is not relevant to your situation. So far, you haven't indicated you are an officer, or owner of any entity, but a paid employee.

The fact your ER in DC is paying you by 1099 is in fact costing you money out of your pocket. When you file your W-2 tax forms, you are paying the employer share of your FICA taxes, which is about 6.5% of your gross income from "self employment". The employee pays 6.5% and the employer contribution is the match. Those are dollars you should not have to pay if your ER is playing fair and legally.
Your DC ER is also committing fraud... by failure to include your wages in his Workers Compensation calculations...WC is based on a $100/payroll... so you see, you are contributing to that action/fraud by keeping quiet about these issues. You may feel you are not being affected, but you are participating in a 'scam' whether you know it or not.

As the info trickles out here... it appears the org suggestion by Patty was valid after all...you may do well to consult that attorney. You may be an accomplice after the fact, intent to commit fraud. The DC employer's WC carrier may well come chasing after the parties involved for retro premiums due.
It happened in Calif to the tune of $1.41M bucks. To one employer. It's not something to treat lightly or fool around with.

[glenntwo]

Oh, I know all to well how much this is costing me, but I also work in this very small little world of people who all know each other no more than once or twice removed. In a culture like that there's no room to cheat, steal, or blow whistles, if you get what I mean...

I'm just a grunt out doing trench work. It's lucrative ditch digging, but it's still just that. I don't think the local authorities would even care to bother with someone like me or the people that do my job. Seriously, to most people we are invisible until the minute they want something from us.

But I do appreciate the heads up on it and I'm definitely going to look into it when I get back into town next spring. But I doubt anyone's going to do anything about it, and if someone decides to blow the whistle, well, it's just one less person the rest of us will have to compete with to make a living.

As far as me being a corporate officer? No, of course I'm not. I'm not even in charge in my own house . That's my point. PA is insisting that I am self-employed and this is why they are holding out. I am not self-employed, but even if I was, I would qualify under that section of the law.

And hey Ms./Mr. Moderator: I'm trying to be as honest and up front as possible here, while still maintaining my privacy, OK? Please stop trying to bait me. There's about $6K involved here, which isn't a whole hell of a lot, but it is about an off-season's worth of mortgages and bills for me, and like I said, times ain't what they used to be.

I am not making demands on anyone, except the people a PA UC who are keeping me in the dark about my claim the last 8 weeks. This little adventure in dealing with a monolithic bureaucracy may not be complicated to you or other folks here, but it's been just the opposite for me.

If you wish not to believe what I am trying to tell you, fine. If you think this is all a waste of the forum's time, that's fine too. Just say the word and I'm out of here. But otherwise I'm just trying to find out more about something I really don't know jack about, all right?

Hell, if you want to get rid of me fast then all you have to do is give me the super-secret phone number and name of whoever is in charge of all this crap in PA. Or at least an Ombudsman type person or something. If I can find the person to help me get this whole thing moving in one direction or the other, I could be out of everyone's hair in a New York minute.

I probably should have just barged in and asked for that in the first place. I could have been out of here three days ago.

Man being unemployed is a PITA. Why in the hell would anyone want to do it?

[cbg]

NO ONE is trying to bait you. NO ONE has said they do not believe you or that you are wasting anyone's time. No one has implied that. The only one who is making any such comments is you yourself.

You appear to be a master at reading things that aren't there.

[CAIW]

As far as me being a corporate officer? No, of course I'm not. I'm not even in charge in my own house . That's my point. PA is insisting that I am self-employed and this is why they are holding out. I am not self-employed, but even if I was, I would qualify under that section of the law.

Sorry...you are misreading that in its entireity...you are NOT eligible for UI under that section. Read it again, you must be a corporate member of the company to be eligible. That is very clear.
Your ER in DC has paid you by 1099, claiming you are in fact "self employed" whether you agree, or like it. PA is accepting that declaration until DC clears it up. And your "self employment" earnings are affecting your eligibility for UI in PA. That is a fact.

I'm just trying to find out more about something I really don't know jack about, all right?

Here's a tip... when someone points out the error in your ways, "reading" of a statute, accept it.
The best advice you have rec'd here yet is to contact an attorney. There is generally no fee for consultation, and a attorney would know the statute, rules etc, and how they may affect your claim for UI.
People on this or any other message board do not provide legal advice, don't know anything about your claim, and can't provide the answers you are seeking.

This last post is yet another full of rehortic that doesn't relate to your claim for UI in PA, DC or any other state.
When you need help...try to just state the facts. Responses will be more relevant and helpful to you.

[HRinMA]

As far as me being a corporate officer? No, of course I'm not. I'm not even in charge in my own house . That's my point. PA is insisting that I am self-employed and this is why they are holding out. I am not self-employed, but even if I was, I would qualify under that section of the law.

The point you don't see is that when you receive a 1099, you are considered self-employed. When you are self employed you are not eligible for unemployment. That is what is holding up your claim.