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Students learn law as they aid the jobless
Monday, December 28, 2009

Ticks. Flea bites. Snarling dogs.

The mail clerk making $9.72 an hour couldn't hack her stomach-turning workplace anymore, so she quit. To make matters worse, she was denied unemployment benefits.

But she had one thing going for her as she tried to get the state to reconsider: Emily Town, an idealistic third-year law student at the University of Pittsburgh, who wasn't about to let someone driven from her job be penalized for it.

Throughout the fall semester, Ms. Town and seven law school classmates sharpened their litigation skills in a course encouraging them to take up the cause of those fighting for unemployment pay. It is an area with no shortage of cases these days, given the recession and the number of people out of work.

By law, an employee with a necessary and compelling reason to quit a job is eligible for benefits. During an appeal hearing, Ms. Town helped establish such a reason -- namely three dogs that sometimes fought and were kept in the workplace over the mail clerk's objections. They "urinated, vomited and shed" in the business and "nothing was done about the dogs or the conditions," according to findings of fact established during the hearing.

The woman "was often bit by fleas and her co-workers sometimes found ticks on her," Ms. Town said. An unemployment compensation referee overturned the denial and awarded the woman benefits, a decision the employer is appealing.

Ms. Town, 27, was stoked by the win but said she wished the employer had shown up for the hearing to allow for an even more elaborate airing of her client's grievances.

"She had every right to tell every disgusting bit of her story."

The course Ms. Town and her peers signed up for is known as the Unemployment Compensation Practicum. In its second year at Pitt, the course is co-taught by Stephen Pincus and John Stember, adjunct law professors and partners with Stember Feinstein Doyle & Payne, a Downtown law firm that represents workers and unions in labor and employment cases.

Students learn about employment law and are taught skills needed to develop a case. They then practice them by giving free help to people who are about to go before a state Unemployment Compensation Board of Review hearing, either to appeal a denial of benefits or because an employer is contesting an award.

A state law enacted in 2005 allows parties to be represented by nonlawyers in unemployment compensation proceedings.

Mr. Pincus and Mr. Stember, whose firm underwrites some costs for the class, supervise their students as they move through each case.

The student lawyers collectively took on 31 cases, winning 18 of them to date.

Some of their clients are being pursued by creditors and flirting with financial ruin. Even when they were employed, most made less than $600 a week.

The caseload this fall included a 60-year-old licensed practical nurse let go after a change in management at an elder care residence facility; a vending machine attendant fired after swearing and arguing mildly with another worker; and a restaurant server who received a larger-than-required tip from a large party but was later accused by management of poor customer service.

"They come to us three, four, five, six weeks with no paycheck," Mr. Pincus said. "If we're successful, they get the compensation including back benefits."

Often, he said, something as simple as an objection raised at a hearing can be the difference between no benefit and a paycheck lasting a year or longer.

Many of the cases are referrals from Neighborhood Legal Services or the Mon Valley Unemployed Committee, which sometimes get more requests for free legal help than they can accommodate, Mr. Stember said. Without the law students, he added, "these folks wouldn't be getting legal representation."

Nationwide, the unemployment rate remains the worst in decades, hovering around 10 percent despite some improvement last month. In Pennsylvania, the state Department of Labor and Industry said the state's seasonally adjusted jobless rate improved in November to 8.5 percent from 8.9 percent the month before, though the level is still double what it was in 2007.

As seen through another indicator, the 157,664 people who last month filed initial jobless claims in Pennsylvania would fill up Heinz Field twice, with 27,564 people waiting outside.

Because the recession has dug more deeply into the work force, people who traditionally have worked well outside of seasonal and boom-bust industries are finding themselves in need of jobless pay, said Laura Abel, a deputy director in the New York University School of Law's Brennan Center for Justice.

"These are people who have never before been through the process. They're up against repeat players," she said. "Employers often hire lawyers or send others who do these proceedings day in and day out."

When the jobless rate rises, companies squeezed by the economy have greater reason to worry about claims they consider bogus, because an employer's claim history affects how much it must contribute to the state's Unemployment Compensation Fund.

If someone's claim is turned down, the next stop is a hearing, like those inside the State Office Building Downtown, where many of the cases handled by the Pitt students were heard.

The sessions, with their questions about "last rate of pay" and "start and end dates," seem more about minutia than emotion.

But in one case, a minister was brought in as a witness to help show that a fired employee's chronic work absences were not willful misconduct but instead the result of medical problems, including sleep apnea, that were noticeable to others in his congregation. The worker was awarded benefits.

In another case, a fired food service worker two months behind on his mortgage tried unsuccessfully to convince a referee not to bar him from unemployment pay because he swore while trying to get another worker to stop a task he was performing.

"I didn't mean to," the man said of the obscenity. "It just came out."

Ultimately, the referee upheld the benefit denial, saying use of foul language within earshot of others and discouraging a co-worker from performing a job task amounted to willful misconduct.

Initially, Mr. Pincus and Mr. Stember sit in on all phases -- client interviews, investigation, hearing preparation and the hearing itself -- but gradually allow their students to handle more of the work independently as their confidence grows.

The professors hope to stir in the class a passion for pro bono work by letting students see close up what the law can do, even for someone unable to afford an attorney.

"People complain that there are too many lawyers, and that's probably true, but poor people do not have enough lawyers," Mr. Pincus said.

He said the students also accrue something increasingly valuable in a glutted job market, something that even those who intern at a prestigious law firm do not typically get -- experience trying an actual case.

"For most of them, this is their first experience ever seeing a client," he said. "If you're in medical school, I know the first year you take anatomy, but by the second year you're in the hospital. Law school has no requirement like that."

The students discover that a client who is nervous about a hearing can clam up, making it harder to articulate the case. They learn that some clients are not the most sympathetic personalities to bring before a hearing referee, even if the case itself is strong.

They also learn a lot about themselves.

One student, Hal Smith, wrote in a self-critique that in future hearings he would try to use "yes" instead of "yeah" when answering questions. Another student, Mary Pat Stahler, resolved to rely less on her notes when speaking, especially in closing arguments.

During one class session, third-year law student David Coyne, 26, of Scranton, said he got too excited in his zeal to help his first client and could argue more effectively if he "learned to take a step back."

The case involved a chain restaurant supervisor with 16 years on the job who was told, after working an extra-long shift, that he could do a basic job of cleaning the kitchen, then go home. Mr. Coyne said the man was fired the next day after a regional manager visited the restaurant and complained about the kitchen.

"I really felt bad for him. His gas was shut off. Creditors were calling," Mr. Coyne said. "I really wanted to do a good job for him."

The referee did not contest the firing but said the employer -- who did not show up for the hearing -- had not adequately established that willful misconduct was involved. The referee awarded the man $460 in weekly benefits.

The students may lack the polish of a licensed attorney, but the clients nevertheless benefit from their zeal and willingness to devote more time at no charge to a case. There is, after all, the occasional thrill a law student gets by going up against a lawyer from a prominent firm and scoring a win on behalf of the client.

"Does it feel good that you saved benefits for this person?" said Mr. Pincus, smiling. "Sure."

Bill Schackner can be reached at bschackner@post-gazette.com or 412-263-1977.
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First published on December 28, 2009 at 12:00 am