Appeal

[berdonj]

What is the name of your state (only U.S. law)?Hawaii
I have an appeal hearing coming up. I am told by the SOH Unemployment Insurance that I had resigned from my job without using all my options before quitting my job. They mentioned that I should've gone to higher authorities like HR and higher. From my end I told them I went to higher authority and I mention I went to my supervisor and then I went higher to my GM. I don't know of anyone else to go too.

So, the unemployment agency is telling I am denied from getting Insurance benefits. I left the job because it was't safe. I was driving for a transportation company driving passengers to their resorts and homes. Also delivering missing bags. The SOH DOT law states that any CDL driver that drives more then 10 hrs on a given shift should have an hour break. Well. I was driving 13 to 16 hours many time on a shift without a break. I was very fatigue and tired. So to prevent me from getting into any accident. I left the company because nothing was done. No one would stop or change what was happening to me. I am not the only driver this company is doing this too. I know of driver beings so tired that they were swerving back and forth on the highway due to over driving and someone reported them to the company. The driver told the company GM that he was tired he should've been pulled off the road he told the GM. The GM was blaming the driver. My question to you is, do I have good cause for my appeal hearing? That I did use all my options I new of to quit my job for safety reasons? Is there anything else I should be prepared for at the hearing?

 

[swalsh411]

It sounds like you have a genuine safety issue here and quitting a job because your employer demands you do something unsafe can be good cause. However, you are expected to make reasonable efforts to resolve the issue internally before quitting. It sounds like you *only* spoke to your boss and nobody else. Are you saying that your boss didn't have a boss? That there was no HR? That there was nobody else in authority over your direct supervisor who you could have at least attempted to contact before quitting? I think they view your claim that you didn't know who else to go to as not credible.

 

[ESteele]

If you duly informed your boss of the above-described scheduling problem, then you may have a chance in prevailing in your unemployment insurance appeal. (If you can have one or more of the former, similarly situated drivers appear at the hearing and/or you can subpoena the records reflecting the hours driven by you and other drivers, you may bolster your position.)

Separately, you may want to confer with a local employment law attorney. Based on your post, you could have a potential breach of public policy claim. Prospective local counsel should be able to advise you of the efficacy of such litigation.

 

[commentator]

IT sounds to me as though you have a fair shot at showing, in your appeals hearing that you did make a good faith effort to notify people and resolve the situation before quitting.

At least that is how you are going to present it. YOu do not need an attorney to present your material for you in the hearing. Do not think you have to go into too much detail. Organize your material well before you present it.

Be sure you file the appeal timely. Do not go into any details while filing the appeal, just say, "I wish to appeal this decision." The hearing is where you will present your evidence. YOu will do this verbally, either in person or on the phone.

Be sure you continue to certify for each week as it passes until your appeal, even though your claim has been denied.

Begin with how long you have worked for this employer, and what you are doing specifically. Go into the DOT requirement (according to your understanding, do not quote the law exactly) that people were to be given a break after so many hours. That you were not given this break..this situation has persisted for...however long.

That you spoke to so and so, your supervisor on such a date (be approximate if you can't give an exact date) when you spoke with so and so, and told him...whatever, he is your immediate supervisor.....nothing happened. You and other employees frequently discussed the situation and you are aware that you had several near misses.... You on such and such date spoke with so and so, the supervisor's boss. Again, nothing was done, and on such and such date you made the decision that in order to maintain your own personal safety and security, you were forced to leave the job. You feel that you did make a good faith effort to resolve the situation to the best of your ability and you always did the job to the best of your abilities.

 

[swalsh411]

I don't think he went to his boss's boss and that is why the initial claim was denied. They are saying he should have at least made an effort to go higher up the chain.

 

[berdonj]

Thanx you commentator for your feedback. I will definitely go your direction. For Swalsh411, I did do my best ability to seek help from my Supervisor and the higher up to my GM. I have worked for this company for little over one year and we went through 3 GM. The company never inform the workers what was going on and we never had meetings. There are no posting or information for the workers to contact anyone else. We had to try on our own to figure out what to do. Like I said I tried my best and I was used for the entire year I worked for them. The company doesn't care how long or how tired you are when your driving. This went for all the drivers. Most of them wanted the hours cause they wanted the money regardless of how tired and fatigue they were. This company abuses their drivers with no breaks while driving for over 10 hours.

 

[swalsh411]

Then that is what you need to say at the appeal. You looked but there was no contact information available for anybody else you could go to. Don't bad mouth the company or talk about practices you don't like. The issue at hand is this specific safety violation. You brought the matter to the attention of your boss and nothing was done. You looked but could not find anybody else to contact. You felt this safety issue was severe enough that you had to quit your job. That's all you need to focus on.

 

[berdonj]

Hi ESteele thanxs for the feedback. I tried looking and calling around for a local employment law attorney and can't find one in Hawaii. What does a potential breach of public policy claim mean? How do I go about to subpoena the records reflecting the hours driven by the other drivers? I was told by my claims examiner at the State unemployment insurance division that I can take them to the Federal Labor division? Can you tell me what they can do for my situation if so?

 

[commentator]

You definitely need to separate these two issues. If you report your employer to the federal wage and hour enforcement, they will do the investigation. They will do the subpoenas, they will determine if the company is in violation of the hours laws.

In your unemployment hearing, it is all about YOU and the fact that you quit your job. It has nothing very much to do with the federal wage and hours laws that have been violated. You do not need to present evidence that these laws were being violated, you do not need to subpoena the other drivers logs, or even present evidence that others were being asked to drive these excessive hours, other than to mention it casually.

You should not need an employment attorney to represent you in the unemployment hearing. Unlike regular court cases, they are set up so that a person can self-represent under most circumstances. The amount of money one receives if approved for unemployment benefits does not make it profitable to hire an attorney and give them a portion of this money. And usually, the issues being heard are so cut and dried that unless you really have a problem with communication and are unable to answer questions, an attorney is not going to be able to significantly influence the outcome of the hearing.

I have even seen people get up and show where they had reported their employer to EEOC and received a right to sue letter, or to the Wage and Hour division and still not win their unemployment appeal that they had a good job related reason to quit, and that they had exhausted all reasonable means to solve the problem before quitting.

For your unemployment hearing, you need to keep this related to you, and to exactly why you quit the job, and exactly what efforts you made to resolve the problem, who you talked to, and what was the company's response before you made the decision to quit. You may mention that you and the other drivers were talking about the work conditions among yourselves and some had mentioned that they had had near misses. (this is what would be considered hearsay in a regular court, but you can mention it in your unemployment appeal, you do not need their actual testimony).

You may mention that you called the Wage and hour division and made a report of the working conditions, but once again, this is unrelated to your specific situation, and even if another agency finds them in violation, it does not automatically make your case for you in unemployment insurance.

 

[ESteele]

With respect to the unemployment hearing, you should follow commentator’s sage advice.

While you probably have a right under state administrative law to request an administrative subpoena for records (which would establish you worked more hours than the allowed number of hours), it is far from certain the hearing examiner will order the issuance of such a subpoena. Unemployment hearings usually operate in a manner closer, in terms of adherence to the administrative law rules, to the “People’s Court” than other administrative agencies.

With that said, OP, wouldn’t your pay stubs reflect the fact you regularly worked hours in excess of the legal safety limit? The pay stubs in your possession could potentially constitute further evidence supporting your testimony.

With respect to locating an employment law attorney to explore a breach of public policy claim, OP, I just googled “Hawaii employment law attorney” and received pages of potential leads. In addition, general web sites abound offering to match you with a lawyer or lawyers desirous of possibly handling your potential employment law case, e.g., www.freeadvice .com. I can also recommend contacting the National Employment Lawyers Association, National Employment Lawyers Association (NELA). With the web sites, if you can clearly and concisely describe your situation in a paragraph or two, these sites can quickly match you with or lead you to lawyers who have expressed a willingness to take on such cases.

In short, after you finish preparing for the unemployment appeal hearing, you should be able to concentrate your efforts at locating a potential employment law attorney for a consultation.

 

[berdonj]

Thanx Commentator and ESteel

Thanxs so much for your feedback. I want to let you both know I had the Appeal hearing by phone yesterday. I took your advice and did well. I stayed on tasked and answered the questions well. I was prepared and thanxs a bunch. Now, I just have to wait and see what the outcome is my mail.

 

[startedone]

HI is a pretty liberal state -- a wrongful constructive discharge ? I would at least suggest the OP speak to an employment lawyer ... if the OP would have needed to contact an administrative agency I don't know but it can be a bar if it is required

 

[berdonj]

Update on appeal hearing

Well, just to let you all know I did my best to focus on myself at the hearing. I got a letter from the Appeal Office saying that I quit employment without "good cause". So, I also have 30 day to appeal from the date the letter was mailed. So, I realize that the laws for having to drive over 10 hours without a break did not do anything in this case. The appeal officer asked me questions as did I tell anyone amount my situation and I told her yes. I answered all her questions and the employer was trying to say yes we have our drivers take their breaks while they are staging for 15 to 20 minutes. So, I figure that the Hawaii DOT law for CDL drivers is a break needs to be given to the driver in additions to an 8 hour shift break. This of course did not come into play for this hearing. Like Commentator mention this is a separate issue. I really thought this hearing was for me to prove that I had gone to my higher authorities with whom I knew at the time. So, I really don't get the not good cause part. Because I explained that the long driving hours cause me to get tired, fatigued and loose concentration. I tried my best.

 

[commentator]

Okay, if you had your hearing and you have now gotten a letter from the appeals tribunal after that hearing saying you did not prove you had good cause, you pretty much might as well move on. The next appeal is to the Board of Review only, whatever that is called in Hawaii, and it is VERY rare to get a decision overturned at this point, as two different appeals officers have now looked at it and are not impressed with your proofs that you did try to resolve the problem before quitting and that you demonstrate good job related reason to quit. It may be that you hung around and drove the ugly shifts, worked the excessive hours too long. In other words, if you had been doing this "too many hours" thing for several years, knowing all along that it was a violation of D.O.T. rules and was unsafe, and then a couple of years in you decide to quit for this reason, it will weaken the case that it happened, you tried to work it out, and then you left. See what I mean? It's sort of like that "the boss slapped my face three years ago and I decided to quit today because of it" scenario.

But anyhow, I'm sorry it hasn't worked out for you, don't have too high expectations for the appeal this time. But you did, after all, need a different, less dangerous job.

 

[berdonj]

Big Thanxs

Thanxs Commentator for all your advices. Yes, I am a substitute teacher and I found out that I will be receiving
partial benefits cause I went back to work after I left my former driving job. Thanx a bunch!!!