Unemployment Compensation: Evidence Concerning Retaliation for Taking FMLA Leave is Admissible

The issues in an unemployment compensation hearing and an employment discrimination/retaliation case are often very similar. Many times employers contest an unemployment compensation claim when an employee intends to pursue an employment discrimination claim against the employer. Unemployment referees often do not permit testimony where the employee contests the employer’s stated reason by arguing that the real reason the employee was terminated was retaliation for engaging in protected activity, such as taking FMLA leave. In Brett v. Unemployment Compensation Board of Review, 2013 Pa. Commw. Unpub. LEXIS 266 (April 4, 2013), the Commonwealth Court made it clear this type of testimony is relevant. In Brett, the Unemployment Compensation Board of Review had affirmed a Referee’s determination that the Claimant was ineligible for benefits under 402(e) of the Unemployment Compensation Law, finding that the employee engaged in willful misconduct by falsifying time cards when the claimant left work earlier than the time marked on his time sheet without good cause. However, the Commonwealth Court remanded the case holding, “Even if the findings of fact establish that Claimant committed willful misconduct are supported by substantial evidence, Claimant is correct that the Board failed to address whether his termination was in retaliation for his use of leave pursuant to the FMLA.” Thus, in Brett, the Commonwealth Court vacated the Board’s decision and remanded the case for the Board to make findings and conclusions as whether the Claimant is eligible for unemployment compensation benefits in light of the contention that the employee was discharged in retaliation for utilizing FMLA leave. Now when an employee at a Referee’s hearing claims that the termination of employment was actually retaliation for engaging in protected activity such as taking FMLA leave, Brett provides a basis for arguing that testimony concerning retaliation for engaging in protected activity is relevant and admissible.

For more information on Pennsylvania unemployment compensation and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1491925.html

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Filed under FMLA, Retaliation, Unemployment

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