After years of litigation and legislation, the Pennsylvania Supreme Court has finally put the issue to rest: Employers are free to represent themselves or hire a non-attorney advisor to present their case when an employee wants an unemployment compensation (UC) hearing.
The court has just decided that non-lawyers aren’t practicing law when they participate in UC hearings.
Recent case: Lani Harkness, a Macy’s beauty consultant, was fired for being rude to a customer. She filed for unemployment. Her attorney objected to Macy’s being represented at the hearing by a non-attorney “tax advisor.” The case sparked years of litigation and confusion.
For a while, Pennsylvania employers were banned from representing themselves or using non-lawyer advisors. Then the legislature amended the UC law to allow the practice. But Harkness appealed to the state Supreme Court, arguing the new law was unconstitutional and amounted to authorizing the illegal practice of law.
The Pennsylvania Supreme Court disagreed. It concluded that appearing before an unemployment compensation referee isn’t practicing law because so little money is at stake, no jury is involved, there's limited discovery and the process is informal. Employers can now freely appear and present their case without fear that they’re illegally practicing law. (Harkness v. Unemployment Compensation Board of Review, No. 112 MAP 2005, Pennsylvania Supreme Court, 2007)
Final note: It’s still a good idea to run a complex case by an attorney, especially if you think the employee also may be filing a discrimination lawsuit. That way, the attorney can help assure what you say at the hearing won’t bite you later.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Beware long suspensions, even with pay! They could be adverse employment actions
- Beware overly broad drug policies, which could violate ADA rules about revealing a disability
- Mocking 'abnormal gait' is disability harassment
- Quick application of anti-harassment policy cuts liability--even in highly charged race cases