• Employment Law Update: Pennsylvania corporate employers cannot be represented by non-lawyer at unemployment compensation proceedings.
  • March 10, 2005
  • Law Firm: Dickie, McCamey & Chilcote, P.C. - Pittsburgh Office
  • As a general rule, a non-attorney may not represent parties before Pennsylvania courts or administrative agencies. In one notable exception, however, Section 702 of the Pennsylvania unemployment compensation law permits an individual claimant to be represented by a non-lawyer in an unemployment compensation proceeding. On February 3, 2005, in a decision that will affect nearly every employer in Pennsylvania, the Pennsylvania Commonwealth Court held that the exception is limited to individual claimants and does not extend to employer/companies. Harkness v. Unemployment Compensation Board of Review, Pa. Commw., No. 150 CD 2004, February 3, 2005. In other words, the Court held that a Pennsylvania employer may act in an unemployment compensation (UC) proceeding only through an agent authorized to practice law.

    Lani Harkness was terminated from her position at Macy's as a "beauty advisor" for Estee Lauder products after she used unprofessional language toward a customer. Harkness appealed the initial denial of her UC benefits. At the hearing before the referee, the company was represented by William Forrest, who was employed by TALX UC Express, a company which regularly represents other companies in UC cases. Forrest was not an attorney.

    At the UC hearing, Harkness objected to Forrest's participation on the grounds that Forrest was not an attorney. The objection was overruled; and the referee heard the case, allowing Forrest to cross-examine Harkness, offer exhibits, and make a closing statement. The referee's decision to deny benefits to Harkness was based, in part, on evidence developed by Forrest during the proceeding.

    Harkness appealed to Commonwealth Court, claiming that Forrest's representation of Macy's constituted the unauthorized practice of law. The company argued that the "informal nature" of the UC proceeding and the relatively small amount of money at stake should be taken into account and that Forrest did not actually render legal advice or practice law.

    The Court found that, in considering whether an activity is within the "practice of law," the type of tribunal or character of the proceeding is unimportant. The issue turns on whether or not the advocate furthers the legal position of the party represented. Based on that fact, the Court found that Forrest engaged in the practice of law when he appeared before the referee, assumed the role of legal advocate, conducted cross-examination, took a position on evidentiary issues, and made a closing legal argument. The Court ruled that, in performing the functions of an attorney, Forrest implicitly represented that he had the legal competence to address and analyze the legal issues involved. The Court vacated the referee's decision and remanded the case for rehearing.

    While this case does not require a company's participation at every UC proceeding, it does hold that when a representative appears on behalf of the company to present a legal defense, that individual must be authorized to practice law. Although the Pennsylvania Department of Labor and Industry already has announced that the UC Board of Review will appeal this decision to the Pennsylvania Supreme Court, Pennsylvania employers should be prepared to retain counsel to represent their legal interests in UC proceedings at least until that time. Also, employers in other states should be fully aware of the provisions of their state's UC laws and regulations and must act consistently with any requirements regarding legal representation.