NY Unemployment Determination Policy

[Geyser12]

What is the name of your state (only U.S. law)? NY
This is a letter I just put together to my Unemployment case worker, it pretty much describes everything:

Dear Nina,

This is in regards to you denying my claim of unemployment benefits on November 11th,2013.

You called my home and we spoke on November 6, 2013. At that point you told me my employer, Brian at M&M sent you a letter stating I resigned. I forwarded you the email he sent me terminating my employment.

At that point you assured me you would contact him and if anything new arose you would be obligated to contact me to dispute any new allegations.

The new allegation was that I did not report my absence on 10/7/2013,10/8/2013, 10/9/2013,10/10/2013. which violates a set of procedures presented to me on 10/15/2012 which states," not reporting three unscheduled absences will result in discharge."

It is my understanding that by not contacting me again you may have violated your own set of procedures.

I do not recall being presented these procedures, I know I did not sign anything.

But I do know that contact WAS made between me and Brian on 10/8 and 10/9 in which I reported my absence for 10/8,10/9 and was told to take off on 10/10. Therefore I DID not violate procedures.

Attached is my home call history:

1. Line 34 shows Brian calling my home on 10/8 from Meadows Medical where a 1 minute conversation occurred.

2. Line 11&12 proves I called Brian's cell phone on 10/9 and he returned my call where we spoke for almost three minutes in regards to my being absence at 3:06pm.


I need you to contact me as soon as possible in regards to these issues. If I do not hear from you within the next few days I will have to file a complaint with the Department of Labor for the above delinquency to have on record for hearing purposes.

So, your prompt attention is greatly appreciated.

[
My questions are:
Am I correct she should have contacted me about the new allegations, especially after my employer was already caught in a big lie to avoid paying benefits?
I was not given a set of procedures, nor is any employee, but I am thinking this lie of his may work on my behalf.
Is the burden of proof now on the employer to prove we did NOT discuss the absences during our conversations? I did not have any prior unscheduled absences only the 1 on 10/7.
If I don't hear from the case worker should I file a complaint so it is on the record for my hearing? Who would I file it with?(Dept of Labor)? I requested a hearing immediately.
My case will still be pending until 12/11 (that is 30 days after the determination) can the case worker reverse her decision before that?

 

[Proserpina]

How are you going to prove what was said during those phone calls?

 

[Geyser12]

How are you going to prove what was said during those phone calls?

I thought the burden of proof for misconduct lies on the employer, is that not correct? Wouldn't he have to prove I didn't discuss the missed days?

Why would he lie and say I resigned if he had grounds to terminated me for misconduct?

 

[Proserpina]

I thought the burden of proof for misconduct lies on the employer, is that not correct?

Why would he lie and say I resigned if he had grounds to terminated me for misconduct?

Resignation virtually guarantees the employee won't get UI.

Misconduct does carry such a guarantee.

Could you please clarify something though? What was the actual content of the "termination" letter?

 

[swalsh411]

Unless NY works completely unlike every State I have experience with, this letter to "Nina" threatening to file a complaint if she doesn't immediately investigate the issue you are bringing up (and presumably you are asking her to change the determination in your claim) is out of line and now how the process works. You can certainly send in evidence in support of your appeal (and generally you must also send copies to the opposing party, in your case your former employer) but testimony is taken and evidence entered into the record at the appeal. After the appeal, a decision will be made and both parties notified. It happens on a timetable. Even if Nina felt the determination in your case was wrong, she couldn't do anything until your appeal hearing.

In other words, you're trying to short circuit the process by appealing personally to the examiner hoping for a change in determination, and that's not how it works.

 

[Geyser12]

Resignation virtually guarantees the employee won't get UI.

Misconduct does carry such a guarantee.

Could you please clarify something though? What was the actual content of the "termination" letter?

Dear,

Although we appreciate your time here, this notice serves as termination of your employment with the company effective immediately.

Sincerely,

 

[Geyser12]

Unless NY works completely unlike every State I have experience with, this letter to "Nina" threatening to file a complaint if she doesn't immediately investigate the issue you are bringing up (and presumably you are asking her to change the determination in your claim) is out of line and now how the process works. You can certainly send in evidence in support of your appeal (and generally you must also send copies to the opposing party, in your case your former employer) but testimony is taken and evidence entered into the record at the appeal. After the appeal, a decision will be made and both parties notified. It happens on a timetable. Even if Nina felt the determination in your case was wrong, she couldn't do anything until your appeal hearing.

In other words, you're trying to short circuit the process by appealing personally to the examiner hoping for a change in determination, and that's not how it works.

This was very helpful, thank you. I can expect not to hear back from her. I am wondering why the claim status is still considered pending online since that gets updated every night.
Now would you happen to know if Nina did not follow procedure based on the above?

 

[Proserpina]

Dear,

Although we appreciate your time here, this notice serves as termination of your employment with the company effective immediately.

Sincerely,

Thanks for clarifying.

I'm not convinced though, that this is not simply a somewhat poorly-phrased confirmation of your resignation.

 

[cbg]

Specifically what procedures do you think Nina failed to follow and how do you think it impacts your claim?

 

[Geyser12]

Specifically what procedures do you think Nina failed to follow and how do you think it impacts your claim?

After presenting her with the termination letter she specifically told me she would have to contact me if anything new arose when she went back to my employer with the termination letter. This makes me think it is some kind of policy of determination.

My employer stating that I was given a set of procedures, and the statement that I did not call in my absence was new. I was not questioned about this by Nina in my first and only conversation with her.

Had she contacted me about this, I would have asked if my employer presented a signed and dated copy of these procedures to her (which does not exist), and proven I HAD made contact. She would have realized that my employer not only lied that I resigned but after that didn't work out he could not prove he presented me with procedures and lied about the contact and perhaps came to a different conclusion.

 

[cbg]

That's a whole lot of if's and presumptions on your part.

 

[Proserpina]

After presenting her with the termination letter she specifically told me she would have to contact me if anything new arose when she went back to my employer with the termination letter. This makes me think it is some kind of policy of determination.

My employer stating that I was given a set of procedures, and the statement that I did not call in my absence was new. I was not questioned about this by Nina in my first and only conversation with her.

Had she contacted me about this, I would have asked if my employer presented a signed and dated copy of these procedures to her (which does not exist), and proven I HAD made contact. She would have realized that my employer not only lied that I resigned but after that didn't work out he could not prove he presented me with procedures and lied about the contact and perhaps came to a different conclusion.

I don't think you're understanding this at all.

You can't prove the content of the phone calls; for all we know you could have resigned verbally and called your manager a very rude name in the process.

Honestly, you're tilting at windmills here. I'm doubtful you can prove anything at all.

 

[Geyser12]

Thanks for clarifying.

I'm not convinced though, that this is not simply a somewhat poorly-phrased confirmation of your resignation.

It is a termination letter. He changed his original story from me resigning to the second story that I was terminated for misconduct.

 

[commentator]

Can the letters, okay? They're stupid, and you have no appeals and no threats, and the way it's going to be done is the way it is always done.

First of all, the adjudicator, who is not your "case worker" but is an officer of the unemployment system who will be making your first decision, is supposed to collect the evidence. She has two weeks, ideally. They are supposed to render an initial decision based on the evidence and statements from both parties within about two weeks. She has no personal relationship with you, and does not in any way have to respond to any inquiries you make to her personally. Your threats to file a grievance against her with the Department of labor are merely silly. This filing and approval and appeal process has been cut and dried pretty much since its inception in the '30's, and you're not going to change it because you don't understand how it works.

You are writing her personally, demanding that she call you back and let you argue with the information she received from your employer before she renders her initial decision. But too bad, she has already rendered it. She cannot change it, even if you contact her again and argue with her so brilliantly she is now convinced you should have been approved.

You have an appeal. File for it, and be ready to present to this whole new entity the details of your case. That the person who made your initial decision did not call you back is NOT going to help your appeal one iota. In fact, if I were doing your appeal, I'd cut you off right quick when you started bringing it up , saying, "Irrelevant!" In your appeals hearing, you are there only to present your case about the reason you are no longer working there, NOT whether or not the initial decision was valid or not, whether they treated you fairly or should have called you or whatever.

She did not HAVE to call you back. She went with the "most believable" of the two parties. I don't know why, and it's no longer her problem. Your only recourse is to go to appeals, and try to show the appeals referee that you were NOT terminated for absenteeism, as your employer indicated, but that you actually, what? Didn't show up for those days for another reason? Were actually there on those days? Had an approved absence for those days?

Whatever it is you are going to use to argue that you did not know about the policy, did not quit by not showing up those days, whatever, you are really really really barking up the wrong tree if you think you need to rabbit trail off into whether the adjudicator who did your initial decision did it right.

Trust me, forget about your initial determination. Forget this lady, forget writing her a letter, or filing a grievance against her. It won't amount to anything, and will seriously affect your chances of being approved. Not because you've threatened her or made an issue or something, but because you're not focusing on the important part of this situation.

What do you mean it's updated nightly, and what do you think this would mean? Do you really believe that someone besides yourself is chasing through the system and keeping abreast of your claim status on a daily basis, thinking of you and receiving your personal communications? We assume you are making the weekly certifications required and are registered for work and following all the processes necessary to certify for weeks as they pass. This is regardless of the status of your claim, either approved, denied, or pending. You still have to get these certifications in weekly if you are ever going to be paid for these weeks.

I am assuming, from what you say, that you have been denied initially, and you have filed an appeal as directed in the letter. You should, very shortly receive information about your appeal hearing date.

At this point, you will be discussing the situation of your firing with someone entirely new. Forget the adjudicator who made your initial decision. Even if you had been approved in the initial decision, your employer could very well have filed and you'd have the same result, you'd be arguing your case before a completely different person in the appeals tribunal. The original adjudicator has the job of contacting both of you. They have the option of contacting either or both of you again to obtain the information they need to make the initial decision. They are under NO obligation to contact you a certain number of times, or allow you to argue with them regarding what they received from the other party. IF THEY WANT TO, they could even call both of you in to have what is called a fact finding hearing, where both parties present evidence. But once they've collected evidence from both parties, and made a decision, forget trying to argue with them any further about the issues.

From the point of the initial appeal forward, your appeal, your whole claim is transferred to the appeals tribunal. In this hearing, you are going to make your case. In a sense, the case will start again, as if it had never been adjudicated the first time. You will present your side of the situation, your employer will present their side. Once again, the officer doing the hearing will look at the evidence, listen to the parties' testimony, and go with whoever is the "most believable."

After this appeal, you will have the chance to take your case before the board of review. If they deny it, there is always the option of civil court. But you cannot complain, you cannot appeal, and you cannot sue about the appeals process until you have done the requisite appeals that are standard in unemployment law. At no point can the person who makes a decision pop up and change it after the fact, the decision will have to be overturned by the next level of the appeals process.

You've jumped off here and gotten way ahead of yourself. Can you imagine how, if your claim goes into additional appeals, how silly it would sound that you're back there hollering that your initial appeals decision was "not fair" or something because the adjudicator didn't call you back after receiving information that caused them to deny your claim?

Get busy establishing exactly what you're going to be saying in the hearing. That's the only appeal or complaint you have within the unemployment system.

 

[Geyser12]

I don't think you're understanding this at all.

You can't prove the content of the phone calls; for all we know you could have resigned verbally and called your manager a very rude name in the process.

Honestly, you're tilting at windmills here. I'm doubtful you can prove anything at all.

So the burden of proof for misconduct does not fall on the employer?
One thing I can prove is he is a liar.